diff --git "a/data/processed/caselaw.json" "b/data/processed/caselaw.json" --- "a/data/processed/caselaw.json" +++ "b/data/processed/caselaw.json" @@ -26946,12280 +26946,29686 @@ "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" }, { - "id": "fca-143136-1", + "id": "scc-855-1", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 1–4", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 1", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The Minister of Citizenship and Immigration (the appellant or the Minister) appeals from the decision of Justice Michael L. Phelan of the Federal Court allowing the three respondents’ application for judicial review: 2014 FC 799. In their application, the respondents were contesting the validity of the decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB), which dismissed their appeal from the Refugee Protection Division (RPD).\n\nPursuant to subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act), the judge certified the following question: What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?\n\nThe respondents, who are citizens of Kosovo and Muslim, claim that their lives were threatened by an Islamic extremist group, the Wahhabis, and that the local police were unresponsive to their requests for help. The RPD rejected their claim on the basis that, among other things, they had not satisfied their burden of providing clear and convincing evidence to rebut the presumption that state protection would be forthcoming to them in Kosovo. The Canadian Association of Refugee Lawyers and the Canadian Council for Refugees were granted intervener status to support the respondents’ position.\n\nFor the reasons that follow, I would dismiss the appeal.", - "current_to": "2016-03-29", + "text": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711\n\nThe Minister of Employment and ImmigrationAppellant and Cross‑Respondent\n\nv.\n\nJoseph (Giuseppe) ChiarelliRespondent and Cross‑Appellant\n\nand\n\nThe Security Intelligence Review Committee Intervener\n\nIndexed as: Canada (Minister of Employment and Immigration) v. Chiarelli\n\nFile No.: 21920.\n\n1991: October 28; 1992: March 26.\n\nPresent: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.\n\non appeal from the federal court of appeal\n\nImmigration ‑‑ Deportation ‑‑ Permanent resident convicted of serious offence and ordered deported ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Summary provided of Committee's in camera proceedings ‑‑ Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 4(2), 19(1)(d)(ii), 27(1)(d)(i), (ii), (3), (4), 32(2), 72(1)(a), (b), 82.1(1), (2)(a), (c), (3), (4), (5), (6)(a), (b), 83(1)(a), (2).", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-2", + "id": "scc-855-2", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 5–6", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 2", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Mr. Bujar Huruglica is married to Ms. Hanife Huruglica. Sadije Ramadani is Ms. Huruglica’s mother. As mentioned, the respondents are all citizens of Kosovo and Muslim. Following Mr. Huruglica’s and Ms. Ramadani’s employment by U.S. government contractors, they and their families were allegedly threatened in Kosovo by Islamic extremists. They testified that the Kosovar police were not responsive to their concerns and that their attempts to complain about the threats they received were not taken seriously. The respondents fled Kosovo in January 2013. They traveled through the U.S., where they stayed on a visitor’s visa, and subsequently entered Canada, where they made their refugee claims in March 2013.\n\nAlthough the respondents testified in a straightforward manner, and the RPD did not note any significant inconsistencies or omissions in their testimony, the RPD rejected their claims on the basis that the respondents’ failure to make asylum claims while in the U.S. diminished the credibility that they had subjective fear. The country conditions documentary evidence before the RPD was found not to support the respondents’ allegation that they could not get adequate state protection in Kosovo. The RPD also noted that this documentation did not support the presence and power of Islamic extremists in Kosovo. As such, there was no persuasive evidence to establish that extremist Wahhabis – or any other extremists – had any significant influence over the police or other state institutions in Kosovo.", - "current_to": "2016-03-29", + "text": "Constitutional law ‑‑ Charter of Rights ‑‑ Right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Summary provided of Committee's in camera proceedings ‑‑ Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 .\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual punishment or treatment ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Whether infringement of s. 12 right to freedom from cruel and unusual punishment or treatment ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 12 .\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Whether infringement of s. 15 right to equal benefit before and under the law ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 15 .\n\nAdministrative law ‑‑ Natural justice ‑‑ Fair hearing ‑‑ Security Intelligence Review Committee considering whether permanent resident involved with organized crime ‑‑ Part of Committee hearing in camera ‑‑ Background material and summary of proceedings provided ‑‑ Finding of involvement with organized crime barring appeal to Immigration Appeal Board on compassionate grounds.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-3", + "id": "scc-855-3", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 7–9", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 3", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Before the RAD, the respondents did not submit new evidence or seek an oral hearing. The respondents argued that the RPD’s credibility assessment was flawed, in that the RPD had failed to consider their explanation for not seeking protection in the U.S., and that it had ignored objective evidence of Islamic extremism in Kosovo. They further submitted that the RPD’s state protection analysis was deficient, as it ignored evidence of widespread corruption at all levels of government and of police inadequacy and misconduct.\n\nThe RAD indicated that there was no need to deal with the alleged error in the assessment of the respondents’ credibility, since in its view, the decision of the RPD in respect of state protection was reasonably open to the RPD and was sufficient to dismiss the respondents’ claims.\n\nTo reach its conclusion, the RAD determined the standard of review that applied to the appeal from the RPD’s decision. The respondents had made no submissions in that respect.", - "current_to": "2016-03-29", + "text": "This appeal called into question the constitutionality of the statutory scheme providing for the deportation of a permanent resident on conviction of a serious criminal offence. The main appeal concerned the removal of a ground of appeal from a deportation order and the procedure by which that removal is effected. The cross‑appeal attacked the general statutory scheme.\n\nRespondent was identified in an immigration report made by an immigration officer in January 1986 pursuant to s. 27 of the Immigration Act, 1976, as a permanent resident convicted of an offence for which a term of imprisonment of five years or more may be imposed and therefore a person described in s. 27(1)(d)(ii). An adjudicator, after an inquiry attended by appellant and his counsel, found respondent to be a person described in that section and ordered him deported. The hearing of respondent's appeal to the Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1), was adjourned after the Solicitor General and the Minister of Employment and Immigration made a joint report to the Security Intelligence Review Committee pursuant to s. 82.1(2) indicating respondent to be a person reasonably likely to engage in organized crime.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-4", + "id": "scc-855-4", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 10–12", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 4", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The RAD used the framework developed in Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399, 493 A.R. 89 [Newton] in its standard of review analysis. It found that the so-called Newton factors were better suited to the task than those set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], given that the RAD is an administrative appeal body rather than a reviewing court. The Newton factors are the following: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context.\n\nFirst, after a brief summary of some of the provisions dealing with the RPD and the RAD, the RAD concluded that: These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. (RAD Reasons at para. 13)\n\nSecond, the RAD noted that the issues before it were factual, and that these questions were generally reviewed on a deferential standard in both appellate courts and judicial review contexts: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 89, [2009] 1 S.C.R. 339.", - "current_to": "2016-03-29", + "text": "The Review Committee conducted the required investigation and held a hearing. Prior to the hearing respondent was provided with a document giving background information as to the hearing and summaries of information. A summary of the evidence taken in in camera proceedings of this hearing and provided to respondent indicated that evidence was led that respondent, together with certain named individuals, was a member of a criminal organization which engaged in extortion and drug related activities and that respondent personally took part in the extortion and drug related activities of the organization. The information made available to respondent and the criminal records of respondent and his associates were before the Committee when he appeared and was asked to respond. Counsel for respondent objected to the fairness and constitutionality of the proceeding.\n\nThe Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a), that respondent was a person there are reasonable grounds to believe will engage in organized crime as described in s. 19(1)(d)(ii). The Governor in Council adopted the conclusion of the Review Committee and directed the appellant Minister to issue a certificate under s. 83(1) with respect to respondent's appeal to the Immigration Appeal Board from the deportation order. This certificate was issued, with the result that respondent's appeal would have to be dismissed in so far as it was brought pursuant to s. 72(1)(b).", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-5", + "id": "scc-855-5", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 13–15", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 5", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Third, the RAD held that the purpose and provisions of the IRPA suggest that the RAD is empowered to bring finality to the refugee protection process, and that it may be entitled to show less deference to the RPD in order to do so. In particular, the RAD drew from paragraph 111(1)(b) and subsections 111(2), 171(c) and 162(2) of the IRPA.\n\nTurning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will unfrequently have this opportunity. This “suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand”: RAD Reasons at para. 20.\n\nThe last factor considered by the RAD was the need to limit the number, length and cost of appeals and preserve the economy and integrity of RPD proceedings. This, in the RAD’s view, was the factor that outweighed the others and suggested a deferential approach to questions of fact, especially when added to the fact that the RPD has the advantage of hearing witnesses. In this respect, the RAD adopted the Alberta Court of Appeal’s conclusion in Newton “that it is ‘singularly inefficient’ for a first-level hearing to be repeated at the appellate tribunal”: RAD Reasons at para. 21. The RAD so held despite the fact that its interpretation of the legislation as a whole would lead to the conclusion that little or no deference was to be shown to the RPD findings: RAD Reasons at para. 22.", - "current_to": "2016-03-29", + "text": "The hearing of the appeal was adjourned when respondent gave notice that he intended to raise constitutional questions before the Board and three questions were referred to the Federal Court of Appeal for determination. The court found that: (1) ss. 27(1)(d)(ii) and 32(2) of the Immigration Act, 1976, did not infringe ss. 7 , 12 or 15 of the Charter ; (2) ss. 82.1 and 83 did not infringe ss. 12 or 15 of the Charter but the question as to whether they contravened s. 7 was not a question that the Board could refer to the Court pursuant to s. 28(4) of the Federal Court Act; and (3) the Board would, in relying upon the certificate, violate respondent's rights under s. 7 and this violation was not justified under s. 1.\n\nThe constitutional questions stated in this Court queried whether: (1) ss. 82.1 and 83 of the Immigration Act, 1976 infringed s. 7 of the Charter , and if so, whether that infringement was justified under s. 1; (2) whether reliance upon the certificate authorized by s. 83 of the Act filed in respondent's case infringed s. 7 because the process followed by the Security Intelligence Review Committed did not meet the requirements of s. 7.\n\nThe respondent in the main appeal was granted leave to cross‑appeal, and the constitutional questions stated there queried whether ss. 27(1)(d)(ii) and 32(2) of the Act infringed ss. 7 , 12 and 15 of the Charter in that they required the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender, and if so, whether that infringement was justified under s. 1.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-6", + "id": "scc-855-6", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 16–18", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 6", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Having so concluded, the RAD therefore determined that the appropriate standard of review in this appeal was that of reasonableness, as defined in Dunsmuir and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. The RAD did not consider other alternatives, including the standard of palpable and overriding error set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].\n\nIn its decision on the merits of the appeal, the RAD closely examined the reasoning offered by the RPD, as well as the arguments presented by the respondents. The RAD noted that in addition to the objective evidence cited by the RPD, there was further objective evidence supporting the RPD’s conclusion on the adequacy of state protection. It noted that the objective evidence before the RPD was “mixed” , in that it set out deficiencies in the functioning of government institutions, but also reported on steps taken to improve the quality of law enforcement which had concrete results. This documentation also showed that the Kosovar population trusted its national police service and was largely satisfied with the police’s work.\n\nHaving noted that local failures to provide effective policing do not amount to a lack of state protection unless such failures are situated by documentary evidence within a broader pattern of state inability or refusal to extend protection, the RAD reviewed the actual efforts made by the respondents with their local police and concluded that it was not unreasonable for the RPD to expect the respondents to do more than make an initial approach like they had done.", - "current_to": "2016-03-29", + "text": "Held: The appeal should be allowed and the cross‑appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross‑appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.\n\nThe Court must look to the principles and policies underlying immigration law in determining the scope of principles of fundamental justice as they apply here. The most fundamental principle of immigration law is that non‑citizens do not have an unqualified right to enter or remain in the country. The common law recognizes no such right and the Charter recognizes the distinction between citizens and non‑citizens. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2) , only citizens are accorded the right \"to enter, remain in and leave Canada\" in s. 6(1) . Parliament therefore has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non‑citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-7", + "id": "scc-855-7", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 19–20", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 7", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "In his reasons for granting the application for judicial review, the judge held that the RAD’s conclusion as to its role on appeal was reviewable on the standard of correctness. He justified this choice based on the fact that this question of law is one of general interest to the legal system as a whole that had particular significance outside the refugee law context. He noted that “setting the standard of review is a legitimate aspect of the superior court’s supervisory role”, and that both the Alberta Court of Appeal and the Nova Scotia Court of Appeal applied the standard of correctness to review a similar issue: Newton; Halifax (Regional Municipality) v. United Gulf Developments Ltd., 2009 NSCA 78 [United Gulf]. The judge also mentioned that determining its standard of review fell outside the scope of the RAD’s expertise and experience, even if it involved the interpretation of the IRPA, the RAD’s home statute. For these reasons, the judge distinguished the case before him from that of Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, 2011 3 S.C.R. 654 [Alberta Teachers].\n\nThe judge then held that the RAD had erred in applying the standard of reasonableness to its review of the RPD decision. He noted that this standard was adopted to recognize the division of powers between the executive and the judiciary, a concept that is of “lesser importance and applicability” in this case, which involves an administrative appeal body: Federal Court Reasons at para. 43. In the judge’s view, the relationship between the RAD and the RPD “is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal”: Federal Court Reasons at para. 44.", - "current_to": "2016-03-29", + "text": "A permanent resident has a right to remain in Canada only if he or she has not been convicted of a more serious offence ‑‑ one for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non‑arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non‑citizen to remain in the country. All persons falling within the class of permanent residents described in s. 27(1)(d)(ii) have deliberately violated an essential condition under which they were permitted to remain in Canada. Fundamental justice is not breached by deportation: it is the only way to give practical effect to the termination of a permanent resident's right to remain in Canada. Compliance with fundamental justice does not require that other aggravating or mitigating circumstances be considered.\n\nThe deportation authorized by ss. 27(1)(d)(ii) and 32(2) was not cruel and unusual. The standards of decency are not outraged by the deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a serious criminal offence. Rather, those standards would be outraged if individuals granted conditional entry into Canada were permitted to violate those conditions deliberately and without consequence.\n\nA deportation scheme applicable to permanent residents, but not to citizens, does not infringe s. 15 of the Charter . Section 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2) , only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1) .", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-8", + "id": "scc-855-8", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 21–22", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 8", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The judge held that it may be appropriate to give deference to the RPD’s findings of fact when they turn on a witness’ credibility, but that this was not the case in the application before him. In respect of country conditions documentary evidence, the judge found that the RAD had equal or greater expertise than the RPD.\n\nHaving reviewed the relevant legislation and its purpose, and having compared the role of the RAD to that of the Immigration Appeal Division (IAD), the judge concluded as follows: [54] Having concluded that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a “palpable and overriding error”.", - "current_to": "2016-03-29", + "text": "The effect of the certificate under s. 83 was to direct the Immigration Appeal Board to dismiss any appeal made on compassionate grounds pursuant to s. 72(1)(b) and so limit the appeal to questions of fact or law or mixed fact and law. Neither the substantive provisions nor the procedure followed by the Review Committee resulted in a s. 7 violation.\n\nThe impugned legislation is consistent with s. 7 of the Charter . Section 7 does not mandate the provision of a compassionate appeal from a decision which comports with principles of fundamental justice. The right to appeal from the adjudicator's decision, first to the Board on questions of fact or law or mixed fact and law, and then to the Federal Court of Appeal with leave on questions of law, offers ample protection to an individual from an erroneous decision by the adjudicator and clearly satisfies the principles of fundamental justice. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7. There has never been a universally available right of appeal from a deportation order on \"all the circumstances of the case\".\n\nThe scope of principles of fundamental justice will vary with the context and the interests at stake. Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards. In assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-9", + "id": "scc-855-9", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 23–24", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 9", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The questions to be determined are: a) What is the standard of review to be applied by this Court, particularly in respect of the certified question? b) What was the proper standard of review to be applied by the judge to the issue before him? c) Did the judge properly apply this standard, that is, did the RAD make a reviewable error in defining the “scope of [its] review when considering an appeal of a decision of the RPD”? I note that this issue is narrower than the question certified by the judge, as the RAD’s assessment in the present case did not involve a question of law, nor raise an issue relating to the credibility of oral evidence heard by the RPD.\n\nWith respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative of this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA.", - "current_to": "2016-03-29", + "text": "Assuming that the proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed, having regard to the information disclosed to respondent, the procedural opportunities available to him, and the competing interests at play in this area.\n\nIn the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The Canadian Security Intelligence Service Act and the Security Intelligence Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of interests.\n\nThe various documents given respondent provided sufficient information to know the substance of the allegations against him, and to be able to respond. It was not necessary, in order to comply with fundamental justice in this context, that respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.\n\nCases Cited", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-10", + "id": "scc-855-10", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 10", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The most relevant provisions of the IRPA are reproduced here, while other provisions referred to in these reasons are included in Appendix A: Objectives and Application Objet de la loi Objectives — refugees Objet relatif aux réfugiés 3. (2) The objectives of this Act with respect to refugees are 3. (2) S’agissant des réfugiés, la présente loi a pour objet : (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; c) de faire bénéficier ceux qui fuient la persécution d’une procédure équitable reflétant les idéaux humanitaires du Canada; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; d) d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un", - "current_to": "2016-03-29", + "text": "Referred to: Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376; Reference as to the effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269; Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Lyons, [1987] 2 S.C.R. 309; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452; R. v. Scott, [1990] 3 S.C.R. 979; Ross v. Kent Inst. (1987), 57 C.R. (3d) 79.\n\nStatutes and Regulations Cited\n\nCanadian Charter of Rights and Freedoms , ss. 1 , 6(1) , (2)( a ) , (b), 7 , 12 , 15(1) .\n\nCanadian Security Intelligence Service Act, S.C. 1984, c. 21, ss. 43, 44, 48(2), 48. to 51.\n\nCriminal Code, R.S.C. 1970, c. C‑34, ss. 331(1)(a).\n\nFederal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(4).\n\nImmigration Act, 1976, S.C. 1976‑77, c. 52, ss. 4(2), 19(1)(d)(ii), 27(1)(d)(i), (ii), (3), (4), 32(2), 72(1)(a), (b) [am. S.C. 1984, c. 21, s. 81], 82.1(1), (2)(a), (c), (3), (4), (5), (6)(a), (b) [am. S.C. 1984, c. 21, s. 84], 83(1)(a), (2) [am. S.C. 1984, c. 21, s. 84].", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-11", + "id": "scc-855-11", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 11", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "groupe social en particulier, ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels et inusités; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain; (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; f) d’encourager l’autonomie et le bien-être socioéconomique des réfugiés en facilitant la réunification de leurs familles au Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and g) de protéger la santé des Canadiens et de garantir leur sécurité; (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. h) de promouvoir, à l’échelle internationale, la sécurité et la justice par l’interdiction du territoire aux personnes et demandeurs d’asile qui sont de grands criminels ou constituent un danger pour la sécurité.", - "current_to": "2016-03-29", + "text": "Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 4(2).\n\nSecurity Intelligence Review Committee Rules, ss. 48(1), (2), (3), (4), 45 to 51.\n\nAuthors Cited\n\nCanada. Department of Employment and Immigration. White Paper on Immigration. Ottawa: Queen's Printer, 1966.\n\nConcise Oxford Dictionary. Oxford: Oxford University Press, 1990.\n\nPetit Robert 1. Par Paul Robert. Paris: Le Robert, 1990.\n\nAPPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 299, 67 D.L.R. (4th) 697, 107 N.R. 107, 1 C.R.R. (2d) 230, 10 Imm. L.R. (2d) 137, 42 Admin. L.R. 189. Appeal allowed and cross‑appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross‑appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.\n\nDavid Sgayias, Q.C., and Gerry N. Sparrow, for the appellant.\n\nIrwin Koziebrocki and David Schermbrucker, for the respondent.\n\nSimon Noël and Sylvie Roussel, for the intervener.\n\nThe judgment of the Court was delivered by\n\n//Sopinka J.//", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-12", + "id": "scc-855-12", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 12", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Appeal to Refugee Appeal Division Appel devant la Section d’appel des réfugiés Appeal Appel 110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection. 110 (1) Sous réserve des paragraphes (1.1) et (2), la personne en cause et le ministre peuvent, conformément aux règles de la Commission, porter en appel — relativement à une question de droit, de fait ou mixte — auprès de la Section d’appel des réfugiés la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile. Restriction on appeals Restriction (2) No appeal may be made in respect of any of the following: (2) Ne sont pas susceptibles d’appel : (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national; a) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile d’un étranger désigné; (b) a determination that a refugee protection claim has been withdrawn or abandoned; b) le prononcé de désistement ou de retrait de la demande d’asile; (c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded; c) la décision de la Section de la protection des réfugiés rejetant la demande d’asile en faisant état de l’absence de minimum de fondement de la demande d’asile ou du fait que celle-ci est manifestement infondée; (d) subject to the regulations, a decision of the Refugee Protection Division in respect of", - "current_to": "2016-03-29", + "text": "Sopinka J. -- This appeal calls into question the constitutionality of the statutory scheme pursuant to which a permanent resident can be deported from Canada if, upon the report of an immigration officer and following an inquiry, he is found to have been convicted of an offence for which a term of imprisonment of five years or more may be imposed. The scheme is attacked on the grounds that it violates ss. 7 and 12 of the Canadian Charter of Rights and Freedoms . A further attack, based on s. 7 of the Charter , is brought against the interaction of that scheme with investigations conducted by the Security Intelligence Review Committee into the activities of persons reasonably believed to be involved in certain types of criminal or subversive activity.\n\nI. The Legislative Scheme\n\nThis appeal requires the Court to consider the operation of a comprehensive legislative scheme which governs the deportation of permanent residents who have been convicted of certain criminal offences. I find it convenient to reproduce the relevant provisions at the outset. The provisions are those that were in force when these proceedings were commenced by the inquiry before the adjudicator. Since that time, several of the section numbers have been amended and there have been other minor amendments such as the consolidation of two subsections into one. However the substance of the provisions relevant to this appeal remains the same. (See Immigration Act, R.S.C., 1985, c. I‑2).\n\nImmigration Act, 1976, S.C. 1976‑77, c. 52, as amended by the Canadian Security Intelligence Service Act, S.C. 1984, c. 21\n\n4. . . .\n\n(2) Subject to any other Act of Parliament, a Canadian citizen, a permanent resident and a Convention refugee while lawfully in Canada have a right to remain in Canada except where", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-13", + "id": "scc-855-13", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 13", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "a claim for refugee protection if d) sous réserve des règlements, la décision de la Section de la protection des réfugiés ayant trait à la demande d’asile qui, à la fois : (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and (i) est faite par un étranger arrivé, directement ou indirectement, d’un pays qui est — au moment de la demande — désigné par règlement pris en vertu du paragraphe 102(1) et partie à un accord visé à l’alinéa 102(2)d), (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division; (ii) n’est pas irrecevable au titre de l’alinéa 101(1)e) par application des règlements pris au titre de l’alinéa 102(1)c); (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1); d.1) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile du ressortissant d’un pays qui faisait l’objet de la désignation visée au paragraphe 109.1(1) à la date de la décision; (e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased; e) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant la perte de l’asile; (f) a decision of the Refugee Protection Division", - "current_to": "2016-03-29", + "text": "(a) in the case of a permanent resident, it is established that that person is a person described in subsection 27(1);\n\n19. (1) No person shall be granted admission if he is a member of any of the following classes:\n\n. . .\n\n(d) persons who there are reasonable grounds to believe will\n\n. . .\n\n(ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;\n\n27. (1) Where an immigration officer or peace officer has in his possession information indicating that a permanent resident is a person who\n\n. . .\n\n(d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of\n\n(i) more than six months has been imposed, or\n\n(ii) five years or more may be imposed,\n\n. . .\n\nhe shall forward a written report to the Deputy Minister setting out the details of such information.\n\n(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsection (1) or (2), and where he considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.\n\n(4) Where a senior immigration officer receives a copy of a report and a direction pursuant to subsection (3), he shall, as soon as reasonably practicable, cause an inquiry to be held concerning the person with respect to whom the report was made.\n\n32. . . .\n\n(2) Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), he shall, subject to subsections 45(1) and 47(3) [convention refugee], make a deportation order against that person.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-14", + "id": "scc-855-14", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 14", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection. f) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant l’annulation d’une décision ayant accueilli la demande d’asile. Procedure Fonctionnement (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d’audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s’agissant d’une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. Time limits Délais (3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations. (3.1) Sauf si elle tient une audience au titre du paragraphe (6), la section rend sa décision dans les délais prévus par les règlements.", - "current_to": "2016-03-29", + "text": "72. (1) Subject to subsection (3), where a removal order is made against a permanent resident . . . that person may appeal to the Board on either or both of the following grounds, namely,\n\n(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and\n\n(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.\n\n82.1 (1) In this section and section 83, \"Review Committee\" has the meaning assigned to that expression by the Canadian Security Intelligence Service Act.\n\n(2) Where the Minister and the Solicitor General are of the opinion, based on security or criminal intelligence reports received and considered by them, that\n\n(a) a person who has made . . . an appeal pursuant to paragraph 72(1)(b) . . .\n\n. . .\n\nis a person described,\n\n(c) in the case of a permanent resident, in subparagraph 19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c),\n\n. . .\n\nthey may make a report to the Review Committee and shall, within ten days after the report is made, cause a notice to be sent informing the person who made the appeal of the report and stating that following an investigation in relation thereto, the appeal may be dismissed.\n\n(3) Where a report is made to the Review Committee pursuant to subsection (2), the Review Committee shall investigate the grounds on which it is based and for that purpose subsections 39(2) and (3) and sections 43, 44 and 48 to 51 of the Canadian Security Intelligence Service Act apply, with such modifications as the circumstances require, to the investigation as if the investigation were conducted in relation to a complaint made pursuant to section 42 of the Act, except that", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-15", + "id": "scc-855-15", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 15", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Evidence that may be presented Éléments de preuve admissibles (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Exception Exception (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. (5) Le paragraphe (4) ne s’applique pas aux éléments de preuve présentés par la personne en cause en réponse à ceux qui ont été présentés par le ministre. Hearing Audience (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; (b) that is central to the decision with respect to the refugee protection claim; and b) sont essentiels pour la prise de la décision relative à la demande d’asile; (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.", - "current_to": "2016-03-29", + "text": "(a) a reference in any of those provisions, to \"deputy head\" shall be read as a reference to the Minister and the Solicitor General; and\n\n(b) paragraph 50(a) of that Act does not apply with respect to the person concerning whom the report is made.\n\n(4) The Review Committee shall, as soon as practicable after a report is made to it pursuant to subsection (2), send to the person who made the appeal referred to in that subsection a statement summarizing such information available to it as will enable the person to be as fully informed as possible of the circumstances giving rise to the report.\n\n(5) Notwithstanding anything in this Act, where a report concerning any person is made to the Review Committee pursuant to subsection (2), the hearing of an appeal concerning the person ... pursuant to paragraph 72(1)(b) . . . shall be adjourned until the Review Committee has, pursuant to subsection (6), made a report to the Governor in Council with respect to that person and the Governor in Council has made a decision in relation thereto.\n\n(6) The Review Committee shall,\n\n(a) on completion of an investigation in relation to a report made to it pursuant to subsection (2), make a report to the Governor in Council containing its conclusion whether or not a certificate should be issued under subsection 83(1) and the grounds on which that conclusion is based; and\n\n(b) at the same time as or after a report is made pursuant to paragraph (a), provide the person who made the appeal referred to in subsection (2) with a report containing the conclusion referred to in that paragraph.\n\n83. (1) Where, after considering a report made by the Review Committee referred to in paragraph 82.1(6)(a), the Governor in Council is satisfied that a person referred to in paragraph 82.1(2)(a) . . . is a person described", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-16", + "id": "scc-855-16", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 16", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas. Decision Décision 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 111 (1) La Section d’appel des réfugiés confirme la décision attaquée, casse la décision et y substitue la décision qui aurait dû être rendue ou renvoie, conformément à ses instructions, l’affaire à la Section de la protection des réfugiés. (1.1) [Repealed, 2012, c. 17, s. 37] (1.1) [Abrogé, 2012, ch. 17, art. 37] Referrals Renvoi (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (2) Elle ne peut procéder au renvoi que si elle estime, à la fois : (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and a) que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait; (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. b) qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés.", - "current_to": "2016-03-29", + "text": "(a) in the case of a permanent resident, in subparagraph 19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c),\n\n. . .\n\nthe Governor in Council may direct the Minister to issue a certificate to that effect.\n\n(2) Notwithstanding anything in this Act, the Board shall dismiss any appeal made . . . pursuant to paragraph 72(1)(b) . . . if a certificate referred to in subsection (1), signed by the Minister, is filed with the Board.\n\nCanadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C., 1985, c. C‑23 )\n\n48. . . .\n\n(2) In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person.\n\nCanadian Charter of Rights and Freedoms\n\n6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.\n\n(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right\n\n(a) to move to and take up residence in any province; and\n\n(b) to pursue the gaining of a livelihood in any province.\n\n7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.\n\n12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-17", + "id": "scc-855-17", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 17", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Provisions that Apply to All Divisions Attributions communes Sole and exclusive jurisdiction Compétence exclusive 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. 162 (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie. Procedure Fonctionnement (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité. Refugee Appeal Division Section d’appel des réfugiés Proceedings Procédure 171 In the case of a proceeding of the Refugee Appeal Division, 171 S’agissant de la Section d’appel des réfugiés : (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal; a) la section avise la personne en cause et le ministre de la tenue de toute audience; (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions; a.1) sous réserve du paragraphe 110(4), elle donne à la personne en cause et au ministre la possibilité, dans le cadre de toute audience, de produire des éléments de preuve, d’interroger des témoins et de présenter des observations; (a.2) the Division is not bound by any legal or", - "current_to": "2016-03-29", + "text": "15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.\n\nII. Facts and Proceedings\n\nThe respondent, Joseph (Giuseppe) Chiarelli, was born in Italy in 1960. He received landed immigrant status upon his arrival in Canada in 1975. On November 1, 1984, the respondent pleaded guilty to unlawfully uttering threats to cause injury, contrary to s. 331(1)(a) of the Criminal Code, R.S.C. 1970, c. C‑34, as amended, an offence punishable by a maximum of ten years' imprisonment. He received a suspended sentence. On November 5, 1984, he pleaded guilty to possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, which carries a maximum sentence of life imprisonment. He was sentenced to six months' imprisonment. In January of 1986, Immigration Officer A. Zografos signed a report pursuant to s. 27 of the Immigration Act, 1976 (\"the Act\"), identifying the respondent as a permanent resident described in s. 27(1)(d)(ii), that is, a permanent resident who has been convicted of an offence for which a term of imprisonment of five years or more may be imposed.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-18", + "id": "scc-855-18", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 18", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "technical rules of evidence; a.2) elle n’est pas liée par les règles légales ou techniques de présentation de la preuve; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; a.3) elle peut recevoir les éléments de preuve qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; a.4) le ministre peut, en tout temps avant que la section ne rende sa décision, sur avis donné à celle-ci et à la personne en cause, intervenir dans l’appel; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal; a.5) il peut, en tout temps avant que la section ne rende sa décision, produire des éléments de preuve documentaire et présenter des observations écrites à l’appui de son appel ou de son intervention dans l’appel; (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and b) la section peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation; (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a", - "current_to": "2016-03-29", + "text": "As a result of this report, an inquiry was directed pursuant to s. 27(3) of the Act. The respondent was notified of this inquiry and attended. At the conclusion of the inquiry on May 7, 1986, Adjudicator J. E. McNamara determined, relying on the Narcotic Control Act conviction, that the respondent was a person described in s. 27(1)(d)(ii). He therefore made a deportation order against the respondent pursuant to s. 32(2). The hearing of the respondent's appeal to the Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1) (now R.S.C., 1985, c. I-2, s. 70(1)), was adjourned after the Solicitor General and the Minister of Employment and Immigration made a joint report to the Security Intelligence Review Committee (the \"Review Committee\") pursuant to s. 82.1(2) (now s. 81(2)). The report indicated that in the opinion of the ministers, the respondent was a person described in s. 19(1)(d)(ii), that is, a person who there are reasonable grounds to believe will engage in activity that is part of a pattern of organized criminal activity.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-19", + "id": "scc-855-19", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 25–27", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 19", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "trial court. c) la décision du tribunal constitué de trois commissaires a la même valeur de précédent pour le tribunal constitué d’un commissaire unique et la Section de la protection des réfugiés que celle qu’une cour d’appel a pour une cour de première instance. [Emphasis added] [Je souligne]\n\nWhen reviewing a decision of the Federal Court on a judicial review application, this Court must determine if the judge chose the appropriate standard(s) of review for the issue(s) before him and if he applied it (them) correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, 2013 2 S.C.R. 559 [Agraira]. The latter involves “stepping into the shoes” of the judge. This Court’s focus will thus be on the decision of the RAD.\n\nThat said, the interveners particularly insisted that this Court should give the correct answer to questions that have been certified pursuant to subsection 74(d) of the IRPA. In their written and oral submissions, they relied on this Court’s decision in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paras. 30-37, [2015] 1 F.C.R. 335. However, since then, the Supreme Court has reversed this decision: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, 391 D.L.R. (4th) 644 [Kanthasamy]. The Supreme Court confirmed that despite the fact that a certified question may well be of general importance to the refugee law system, it is not a type of question that falls within the exceptions to the application of the standard of reasonableness: Kanthasamy at para. 44.", - "current_to": "2016-03-29", + "text": "Upon receipt of the joint report, the Review Committee conducted the required investigation and a hearing was held on September 2 and 3, 1987. Prior to this hearing the respondent was provided with a document entitled \"Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee\", as well as two summaries of information. The first was a document entitled \"Chronology of Information and Occurrences Relating to Giuseppe Chiarelli\" and consisted of an extensive summary of surveillance of the respondent. The second document was entitled \"Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco\". The first day of the hearing was held in camera and a summary of the evidence provided to the respondent. This summary indicated that evidence was led that the respondent, together with certain named individuals, was a member of a criminal organization which engaged in extortion and drug related activities, and further that the respondent personally took part in the extortion and drug related activities of the organization.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-20", + "id": "scc-855-20", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 28–29", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under subsection 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions.\n\nThe legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was in place before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on a correctness standard.", - "current_to": "2016-03-29", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 20", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "At the second day of the hearing, the respondent attended with counsel. The \"Statement of Circumstances\", the \"Chronology of Information\" and the \"Summary of Interpretation of Intercepted Private Communications\" were placed before the Review Committee, as were the criminal records of the respondent and his alleged associates. The respondent was then invited to respond. Counsel for the respondent objected to the fairness and constitutionality of the proceeding. He submitted no evidence at the hearing and chose not to cross‑examine the two RCMP witnesses who had testified on the first day. He did, however, later make written submissions to the Committee.\n\nAfter consideration of the matter, the Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a) (now s. 81(7)), that the respondent was a person described in s. 19(1)(d)(ii). The Governor in Council adopted the conclusion of the Review Committee and directed the appellant Minister to issue a certificate under s. 83(1) (now s. 82(1)) with respect to the respondent's appeal to the Immigration Appeal Board from the deportation order. This certificate was issued, with the result that the respondent's appeal would have to be dismissed in so far as it was brought pursuant to s. 72(1)(b) (now s. 70(1)(b)).\n\nThe hearing of the appeal was scheduled to resume in February of 1988. The respondent, however, gave notice that he intended to raise constitutional questions before the Board and the hearing was adjourned. On February 1, 1989, the Board, with the agreement of the parties, referred three questions to the Federal Court of Appeal for determination pursuant to s. 28(4) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10:", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-21", + "id": "scc-855-21", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 30", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 21", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellant strongly argues that the judge chose the wrong standard of review. The judge’s conclusion in that respect, as well as the precedents on which he relied (Newton and United Gulf), did not take into consideration all of the relevant Supreme Court of Canada decisions – especially those issued since 2011. Neither the judge nor the other two provincial courts of appeal turned their mind to the presumption that reasonableness applies to all questions of law arising from the interpretation of an administrative body’s home statute: see, for example, McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 [McLean]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; and Canadian National Railway v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 [CN v. Canada]. The Minister submits that the judge misconstrued the limited exceptions where the standard of correctness may be applied. I agree with these submissions.", - "current_to": "2016-03-29", + "text": "1. (a)do paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, R.S.C. 1985, c. I‑2) infringe or deny the rights guaranteed by sections 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender;\n\n(b)if the paragraph and subsection referred to above do infringe or deny the rights guaranteed by sections 7 , 12 and 15 of the Charter , are they justified by section 1 of the Charter ?\n\n2. (a)do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now sections 81 and 82 of the Immigration Act, R.S.C. 1985, c. I‑2) infringe or deny the rights guaranteed by sections 7 , 12 and 15 of the Charter as those provisions:\n\n(i) deprive individuals of the right to life, liberty and security of the person in violation of the principles of fundamental justice, and/or;\n\n(ii) subject individuals to cruel and unusual punishment? and/or;\n\n(iii) deny individuals equality before and under the law?\n\n(b)if the sections referred to above do infringe or deny the rights guaranteed by sections 7 , 12 and 15 of the Charter , are they justified by section 1 of the Charter ?", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-22", + "id": "scc-855-22", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 31–32", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 22", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "With all due respect to the judge and his colleagues in the Federal Court who have agreed with his selection of standard of review, I simply cannot conclude that a question of law involving the interpretation of an administrative body’s home statute so as to determine its appellate role has any precedential value outside of the specific administrative regime in question: see, among others, Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, [2014] F.C.J. No. 740; Yetna v. Canada (Citizenship and Immigration), 2014 FC 858, [2014] F.C.J. No. 906; Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913, [2014] F.C.J. No. 920 [Spasoja]; Bahta v. Canada (Citizenship and Immigration), 2014 FC 1245, [2014] F.C.J. No. 1278; Sow v. Canada (Citizenship and Immigration), 2015 FC 295, 252 A.C.W.S. (3d) 316; Bellingy v. Canada (Citizenship and Immigration), 2015 FC 1252, 260 A.C.W.S. (3d) 566. In fact, this logically relates to the argument put forth by the respondents and the interveners that it is not useful to look at decisions regarding the role of administrative appeal bodies other than those created under the IRPA: see also the Federal Court Reasons at para. 53.\n\nJust as legal principles applicable to cost awards and to time limitations have been found to fall within the expertise of the administrative bodies involved in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 25, [2011] 3 S.C.R. 471 and McLean at para. 21, defining the scope of its appellate function (or its standard of review) must be within the RAD’s expertise.", - "current_to": "2016-03-29", + "text": "3. (a)does reliance upon the Certificate authorized by section 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now section 82 of the Immigration Act, R.S.C. 1985, c. I‑2) filed in Mr. Chiarelli's case result in an infringement of his rights pursuant to section 7 of the Charter , because the process followed by the Security Intelligence Review Committee did not meet the requirements of section 7?\n\n(b)if reliance upon the Certificate does infringe or deny the right guaranteed by section 7 of the Charter , is it justified by section 1 of the Charter ?\n\nIII. Judgment of the Federal Court of Appeal, [1990] 2 F.C. 299\n\nPratte J.A. (dissenting on the answer to reference question 3(b))\n\nPratte J.A. held that the combination of ss. 27(1)(d)(ii) and 32(2) of the Act does not violate s. 12 of the Charter because they do not impose a punishment. Section 32(2) is the corollary of the limits imposed by s. 4 of the Act on the right of a permanent resident to come to and remain in Canada. Similarly he held that they do not violate s. 7 since there is no injustice in requiring the deportation of a person who has lost the right to remain in Canada. Finally there is no violation of s. 15. Section 6 of the Charter specifically provides for different treatment of citizens and permanent residents regarding the right to remain in Canada. Nor does a distinction between permanent residents who have been convicted of an offence described in s. 27(1)( d ) (ii) and other permanent residents amount to discrimination within the meaning of s. 15.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-23", + "id": "scc-855-23", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 33–36", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 23", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "I cannot agree with the respondents’ position that the issue before the judge was a true jurisdictional question. The respondents framed the issue as involving the overlapping ability of both the RPD and the RAD to exercise their sole and exclusive jurisdictions in making findings of fact, law and mixed fact and law on the same set of evidence. However, the Supreme Court has warned against an expansive interpretation of what it deems to be “true questions of jurisdiction”, as well as questions of overlapping or competing jurisdiction between two administrative bodies. In my view, there is no question here that falls under the scope of such exceptions. I agree with the position taken by other judges of the Federal Court, such as Justice Luc Martineau in Djossou v. Canada (Citizenship and Immigration), 2014 FC 1080, [2014] F.C.J. No. 1130 [Djossou] and Justice Jocelyne Gagné in Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, [2014] F.C.J. No. 1116, that this is not a question of true vires.\n\nLastly, the Supreme Court made it clear in Kanthasamy that a question of general importance to the refugee law system does not fall under any of the other exceptions to the standard of reasonableness set out in Dunsmuir.\n\nI thus conclude that the judge erred in his selection of the standard of review applicable to the case before him, and that the proper standard ought to be that of reasonableness.\n\nBefore embarking on a statutory interpretation analysis, it is important to delineate what is in dispute before us from what is not.", - "current_to": "2016-03-29", + "text": "Pratte J.A. refused to answer the second question of the reference in so far as it related to s. 7 of the Charter as it had not been determined by the Immigration Appeal Board that the respondent had not been given a full opportunity to refute the allegations against him. He held that there was no violation of s. 12 or s. 15.\n\nWith respect to the third question, he observed that the filing of the s. 83 certificate had the effect of depriving the Immigration Appeal Board of its power to allow the respondent's appeal on compassionate grounds. The resulting deportation necessarily implied an interference with the liberty of the person. In concluding that the respondent's rights under s. 7 of the Charter had been infringed, Pratte J.A. observed at p. 318 that \"it is a requirement of fundamental justice that no decision be made determining the rights of a person without giving that person a meaningful opportunity to be heard\". In order to have a meaningful opportunity to be heard, the respondent had to know the information before the Review Committee in order to be able to contradict it. The respondent had not been provided this opportunity and therefore the procedure followed by the Review Committee did not meet the requirements of fundamental justice.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-24", + "id": "scc-855-24", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 37–38", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 24", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "It is not disputed that the role of the RAD is not to review RPD decisions in the manner of a judicial review. All the parties agree that the process before the RAD is a “hybrid appeal”. The parties have also agreed that in respect of questions of law, the RAD should intervene if the RPD erred. That is, it must apply the correctness standard. In fact, and as explained below, one of the roles of the RAD is to develop a coherent national jurisprudence.\n\nWhat the parties disagree on is what a “hybrid appeal” means here, and what the RAD’s role is in respect of questions of fact and mixed fact and law.", - "current_to": "2016-03-29", + "text": "Pratte J.A. concluded, however, that this limitation could be justified under s. 1 of the Charter . Section 48(2) of the Canadian Security Intelligence Service Act (\"CSIS Act\") which denies a party the right to be informed of the evidence led by the other party imposes a reasonable limit in light of the need to protect the secrecy of police investigations of organized criminal activities. This was particularly the case in view of the fact that the Committee's investigation was not to determine the guilt of the respondent, but only whether he deserved to benefit from an appeal on purely compassionate grounds.\n\nStone J.A. (Urie J.A. concurring)\n\nThe majority agreed with Pratte J.A.'s reasons except that in their view, the violation of s. 7 could not be justified under s. 1 of the Charter . Although the interest of the state in protecting confidential police sources and techniques is of sufficient importance to warrant overriding constitutionally protected rights and the withholding of information is rationally connected to that objective, the majority concluded that the procedure enacted by s. 82.1(3) (now s. 81(4)) failed the remaining requirements of the proportionality test. Rather than balancing the state's interest in protecting confidential sources and techniques with the individual's interest in fundamental justice, it was the majority's view that the provision opts for a \"complete obliteration\" of the individual's right in favour of the state's interest.\n\nThe Federal Court of Appeal answered the questions put to it as follows:\n\n1.Subparagraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976 do not infringe section 7 , 12 or 15 of the Canadian Charter of Rights and Freedoms .", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-25", + "id": "scc-855-25", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 39–40", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 25", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "According to the Minister, the judge was wrong to the extent that his reasons can be interpreted as describing an appeal to the RAD as a de novo appeal. Indeed, the Minister submits that when the RAD does not hold a hearing and decides the issues raised by a claimant or the Minister on the basis of the record before the RPD (subsection 110(3) of the IRPA), the RAD is truly acting as an appellate court. Therefore, it should not carry out an independent assessment of the claim. Rather, the Minister says that the RAD should restrict its intervention to cases where the RPD made an unreasonable finding or, in the alternative, a palpable and overriding error: Appellant’s Memorandum of fact and law (MFL) at paras. 78-81. The Minister argues that the reasoning of the Court in Spasoja and its conclusion as to the role of RAD should be followed, because it preserves the integrity of the RPD process: Appellant’s MFL at para. 30. The Minister does not dispute that less deference, if any, would be owed in the relatively rare cases where the RAD holds a hearing pursuant to subsection 110(6) of the IRPA (see paragraph 110(6)(c) in particular). It is in that sense only that the appeal is a hybrid appeal in the Minister’s view.\n\nOn the other hand, the respondents and the interveners support the judge’s findings at paragraphs 54 and 55 of his reasons. In fact, in their view, a finding of error should not be a pre-condition for all appellate intervention by the RAD: Respondents’ MFL at para. 51.", - "current_to": "2016-03-29", + "text": "2.Sections 82.1 and 83 of the Immigration Act, 1976 do not infringe section 12 or 15 of the Canadian Charter of Rights and Freedoms .\n\nThe question whether those sections contravene section 7 of the Charter is not a question that the Board may refer to the Court pursuant to subsection 28(4) of the Federal Court Act.\n\n3.(a)The Board would, in relying upon the certificate issued pursuant to section 83 in respect of Mr. Chiarelli, violate Mr. Chiarelli's rights under section 7 of the Charter .\n\n(b)The violation of section 7 is not justified by section 1 of the Charter .\n\nIV. Issues\n\nThe appellant was granted leave to appeal and the following constitutional questions were stated by Gonthier J.:\n\n1.(a) Do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now ss. 81 and 82 of the Immigration Act, R.S.C., 1985, c. I‑2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ?\n\n(b) If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter , are they justified by s. 1 of the Charter ?\n\n2.(a) Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I‑2) filed in the respondent's case result in an infringement of his rights pursuant to s. 7 of the Charter , because the process followed by the Security Intelligence Review Committee did not meet the requirements of s. 7?\n\n(b) If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter , is it justified by s. 1 of the Charter ?", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-26", + "id": "scc-855-26", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 41–43", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 26", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "A few comments as to how I approached my task and what I consider necessary to include in my reasons are also warranted. In Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 at para. 45, 392 D.L.R. (4th) 351, I indicated that it is sometimes difficult to apply the standard of reasonableness to pure questions of statutory interpretation, and that further guidance from the Supreme Court would be welcomed as to the type of analysis that courts should perform in such cases.\n\nThe parties referred to the conflicting approaches and conclusions reached by Federal Court judges on the issue before us. Thus, to ensure that I understood the various approaches to interpreting the relevant provisions that were adopted below, I reviewed all such Federal Court decisions, as well as a good sample of RAD decisions dealing with the issue (especially following the judge’s decision in the present case).\n\nHowever, I gather from the Supreme Court decision in Kanthasamy that there is no real need for me to engage in a comparative analysis to explain whether or not an alternative statutory interpretation is reasonable. Section 25 of the IRPA was construed for many years by many administrative and judicial decision-makers differently from how it was ultimately construed by our highest Court in Kanthasamy. Despite this, the Supreme Court felt no need to refer to these alternative constructions before concluding that section 25 of the IRPA bore only one reasonable interpretation, and that the decision under review was therefore unreasonable.", - "current_to": "2016-03-29", + "text": "The respondent in the main appeal was granted leave to cross‑appeal, and the following constitutional questions were stated by Gonthier J.:\n\n1.(a) Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I‑2) infringe or deny the rights guaranteed by ss. 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender?\n\n(b) If the paragraph and subsection referred to above do infringe or deny the rights guaranteed by ss. 7 , 12 and 15 of the Charter , are they justified by s. 1 of the Charter ?\n\nThe answers to these questions will dispose of the questions submitted to the Court of Appeal pursuant to s. 28(4) of the Federal Court Act with this exception. Question 2 at the Federal Court of Appeal corresponds to Question 1 in the main appeal but referred to s. 12 and s. 15 in addition to s. 7 of the Charter . Sections 12 and 15 were neither argued by the parties in this Court nor referred to in the constitutional questions. In the circumstances, I will not deal with them.\n\nV. Analysis", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-27", + "id": "scc-855-27", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 44–45", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 27", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "This approach appears to be particularly well suited to the question before us in the present appeal. I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers: Paul Daly, “Les appels administratifs au Canada” (2015) 93 Can. Bar Rev. 71 at 105 [Les appels administratifs au Canada]. Accordingly, the range of legally acceptable outcomes will necessarily be narrow. In fact, as will be explained, it is my view that the legislative intent is not ambiguous. The controversy in RAD and Federal Court decisions can be more accurately described as a disagreement over whether to import either the standard from a judicial review of an administrative action (Dunsmuir) or an appellate court’s review of a lower court decision (Housen) into the RAD’s review of an RPD decision.\n\nI also note that in this particular case, the RAD did not have the benefit of any submissions in respect of its appellate role, nor of a record which included the legislative evolution and history of the relevant IRPA provisions. Further, it appears that the RAD was one of the first, if not the first, administrative appeal bodies outside of Alberta to rely on the Newton factors. This was mentioned by the British Columbia Supreme Court in BC Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331 at para. 31, [2014] B.C.W.L.D. 966 [BC Society], where the B.C. Supreme Court declined to follow Newton.", - "current_to": "2016-03-29", + "text": "The cross‑appeal attacks the general scheme providing for deportation of permanent residents who have been convicted of certain criminal offences. The main appeal concerns the removal of a ground of appeal from a deportation order and the procedure by which that removal is effected. I will address the cross‑appeal first. Throughout these reasons I will refer to Chiarelli as \"the respondent\" and the Minister as \"the appellant\", although their positions are actually reversed on the cross-appeal.\n\n1.Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976 violate the Charter ?\n\nSection 27(1) requires an immigration officer in possession of information that a permanent resident falls into one of its enumerated classes to forward a report setting out the details of that information to the Deputy Minister. The relevant class in this case is that set out in s. 27(1)(d)(ii), a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of five years or more may be imposed. An inquiry is then held by an adjudicator in cases where the Deputy Minister considers that one is warranted (s. 27(3)). Section 32(2) provides that where an adjudicator decides that a person who is the subject of an inquiry does fall within one of the classes in s. 27(1), the adjudicator shall, except in the case of a convention refugee, make a deportation order against that person.\n\n(a) Section 7", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-28", + "id": "scc-855-28", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 46–48", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 28", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "I do not find the decision in Newton particularly useful. I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory interpretation requires an analysis of the words of the IRPA read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object (Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983)). The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD.\n\nThe principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision-makers (as set out in Dunsmuir at paras. 27-33) have no application here. Indeed, the role and organization of various levels of administrative decision-makers do not put into play the tension between the legislative intent to confer jurisdiction on administrative decision-makers and the constitutional imperative of preserving the rule of law.\n\nWith all due respect to the contrary view, it would also be inappropriate to import the considerations set out in Housen, since the adoption of the high level of deference afforded by appellate courts of law to lower courts of law on questions of fact and mixed fact and law was mainly guided by judicial policy: Housen at paras.16-17.", - "current_to": "2016-03-29", + "text": "The essence of the respondent's position is that ss. 27(1)(d)(ii) and 32(2) are contrary to principles of fundamental justice because they are mandatory and require that deportation be ordered without regard to the circumstances of the offence or the offender. The appellant correctly points out that the threshold question is whether deportation per se engages s. 7, that is, whether it amounts to a deprivation of life, liberty or security of the person. The Federal Court of Appeal in Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35, held that deportation for serious offences is not to be conceptualized as a deprivation of liberty. I do not find it necessary to answer this question, however, since I am of the view that there is no breach of fundamental justice.\n\nThe principles of fundamental justice are to be found in the basic tenets of our legal system. Lamer J. (as he then was) stated in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513:\n\nWhether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.\n\nHe recognized, at p. 513, that \"principles of fundamental justice\" could not be defined in the abstract but would have to be interpreted in the context of alleged violations:\n\n. . . those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7.\n\nThe importance of a contextual approach to the interpretation of s. 7 was emphasized by Cory J. in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 226:", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-29", + "id": "scc-855-29", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 49–52", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 29", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "When the legislator designs a multilevel administrative framework, it is for the legislator to account for considerations such as how to best use the resources of the executive and whether it is necessary to limit the number, length and cost of administrative appeals. As will be discussed, the legislative evolution and history of the IRPA shed light on the policy reasons that guided the creation of the RAD and the role it was intended to fulfil. These policy considerations are unique to the RPD and the RAD. Thus, one should not simply assume that what was deemed to be the best policy for appellate courts also applies to specific administrative appeal bodies.\n\nTo be clear, I am not saying that the standard of reasonableness will never apply in appeals to administrative appeal bodies. In fact, there are examples where the legislator clearly expresses an intention that such a standard be applied: see, for example, subsection 18(2) and section 33 of the Commissioner’s Standing Orders (Grievances and Appeals) Regulation, SOR/2014-289, adopted pursuant to the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10; subsection 147(5) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (see Appendix A). This last provision was reviewed and construed by this Court in Cartier v. Canada (Attorney General), 2002 FCA 384 at paras. 6-9, [2003] 2 F.C.R. 317.\n\nRather, what I am saying is that one cannot simply decide that this standard will apply on the basis of one’s own assessment of factors (e) and (f) listed in Newton (see paragraphs 10, 15 and 16 above). One must seek instead to give effect to the legislator’s intent.\n\nWith this in mind, I will now proceed with my statutory analysis, looking first at the relevant purpose and object of the IRPA.", - "current_to": "2016-03-29", + "text": "It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.\n\nHe noted that under a contextual approach, constitutional standards developed in the criminal context could not automatically be applied to regulatory offences. Similarly in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, McLachlin J. adopted at p. 848 a contextual approach which \"takes into account the nature of the decision to be made\". She concluded that in defining the fundamental justice relevant to extradition, the Court must draw upon the principles and policies underlying extradition law and procedure.\n\nThus in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non‑citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country: R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376.\n\nLa Forest J. recently reiterated this principle in Kindler v. Canada (Minister of Justice), supra, at p. 834:", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-30", + "id": "scc-855-30", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 53–54", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 30", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The many objectives of the IRPA are expressly set out in subsection 3(2) of the IRPA (see paragraph 25 above). The Minister focuses particularly on paragraph 3(2)(e), which refers to the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This is obviously very relevant when one considers the functions of the RPD and the RAD. That said, one should always keep in mind that the very first objective of the IRPA (paragraph 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted. This may be what prompted Robert Thomas to write that decision-making in respect of refugee claims is “perhaps the most problematic adjudicatory function in the modern state”: Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Oxford: Hart Publishing, 2011) at 48, cited in Les appels administratifs au Canada at 95 fn 103.\n\nThe IRPA creates two distinct divisions of the IRB to deal with refugee claims. The RPD plays a primary role in the refugee claims determination process, for it must hold a hearing in respect of every refugee claim: subsection 170(b) of the IRPA. It must also determine in advance the issues that will need to be addressed at its hearing. At the hearing, the member of the RPD plays a crucial role, quite distinct from that of a judge. Most of the time, he or she questions the claimant before he or she is examined by his or her own counsel, or cross-examined by counsel for the Minister, if any.", - "current_to": "2016-03-29", + "text": "The Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so. This right, of course, exists independently of extradition. If an alien known to have a serious criminal record attempted to enter into Canada, he could be refused admission. And by the same token, he could be deported once he entered Canada.\n\n. . .\n\nIf it were otherwise, Canada could become a haven for criminals and others whom we legitimately do not wish to have among us.\n\nThe distinction between citizens and non‑citizens is recognized in the Charter . While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right \"to enter, remain in and leave Canada\" in s. 6(1).", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-31", + "id": "scc-855-31", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 55–56", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 31", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The RPD is the final decision-maker in respect of all claims listed in subsection 110(2) of the IRPA. The respondents further point out that the RPD was in fact the final decision-maker in about 80% of the refugee claims assessed in 2013: Respondents’ MFL at para. 53; The Refugee Appeal Division: Presentation to the Toronto Regional Consultative Committee by Ken Atkinson (February 5, 2014), Appellant’s Appeal Book, Volume 1, Tab 7 at 68.\n\nWhen dealing with an appeal, the RAD has essentially the same powers as the RPD: see sections 162 and 171 of the IRPA. For example, the RAD has the same ability as the RPD to take “judicial notice of any facts that may be judicially noticed and of any other generally recognized facts, and information or opinion that is within its specialized knowledge”: subsection 171(b) of the IRPA. Nevertheless, there are a few important distinctions between the RAD and the RPD. First, the RAD will rarely hold a hearing: subsection 110(6) of the IRPA. Although it may consider any new documentary evidence submitted by the Minister, it can only accept new evidence as defined in subsection 110(4) from a refugee claimant (See Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. Moreover, 10% of its members, as well as its vice-president, must be lawyers or notaries: subsection 153(4) of the IRPA. When an appeal is heard by three members of the RAD, their decision has the same precedential value that an appellate court decision has for a trial court. Such a decision binds all RPD members, as well as any one-member panel of the RAD: subsection 171(c) of the IRPA.", - "current_to": "2016-03-29", + "text": "Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non‑citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. Section 5 of the Act provides that no person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or remain in Canada. The qualified nature of the rights of non‑citizens to enter and remain in Canada is made clear by s. 4 of the Act. Section 4(2) provides that permanent residents have a right to remain in Canada except where they fall within one of the classes in s. 27(1). One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non‑arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non‑citizen to remain in the country. The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely. The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-32", + "id": "scc-855-32", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 57–59", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 32", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "The IRPA also provides for a similar two-level process in respect of other immigration matters. In particular, appeals from a number of first-level decision-makers are made to another IRB division: the IAD. The wording of paragraph 67(1)(a) of the IRPA, which describes when the IAD can intervene, is similar to that of paragraph 111(2)(a) (see Appendix A). However, I do not find it useful to say more about the IAD, because the cases discussing the IAD raised by the Minister are outdated: they are either old cases that were released before the IRPA came into force; or they are cases which were released after the IRPA came into force but which rely on the old cases. Both interpret language on when the IAD can intervene that is not current, and provide no analysis of the words “wrong in law or fact or mixed law and fact” found at subsection 67(1)(a).\n\nSections 110 and 111, reproduced above, deal with appeals from the RPD to the RAD. Subject to my comments with respect to paragraph 111(2)(b), I generally agree with the RAD’s finding that neither section 110 nor 111, nor the legislation as a whole, point to the need to show deference to the RPD’s findings of fact. As acknowledged by the RAD in this case, these provisions evidence the legislator’s intent that the RAD bring finality to the refugee claims determination process.\n\nIn particular, paragraph 111(2)(a) indicates that the RAD does not need to defer for factual findings. Paragraph 111(2)(a) does not distinguish between errors of law, fact or mixed fact and law. It simply requires that the decision of the RPD be “wrong in law, in fact or in mixed law and fact” (in French: “erronée en droit, en fait ou en droit et en fait”).", - "current_to": "2016-03-29", + "text": "In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.\n\n(b) Section 12\n\nThe respondent alleges a violation of s. 12 for essentially the same reasons that he claims s. 7 is infringed. He submits that the combination of s. 27(1)(d)(ii) and 32(2) constitutes cruel and unusual punishment because they require that deportation be ordered without regard to the circumstances of the offence or the offender. He submits that in the case at bar, the deportation order is grossly disproportionate to all the circumstances and further, that the legislation in general is grossly disproportionate, having regard to the many \"relatively less serious offences\" which are covered by s. 27(1)(d)(ii).", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-33", + "id": "scc-855-33", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 60–61", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 33", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "At the hearing, the Minister argued that the wording of paragraph 111(2)(a) was such that it applied only to paragraph 111(1)(c), and not to paragraphs 111(1)(a) or (b). Thus, paragraph 111(2)(a) provides little guidance as to the role of the RAD when it confirms a RPD decision under paragraph 111(1)(a) or sets it aside by substituting “the determination that, in its opinion, should have been made” under paragraph 111(1)(b). I cannot agree. The effect of this argument is that the RAD would be forced to reach the appropriate outcome for the case (under one of paragraphs 111(1)(a), (b) or (c)) before it could choose the proper standard of review to apply to that case: it would be forced to put the cart before the horse.\n\nAlbeit in a different context, a similar approach was rejected by this Court in Cartier at paragraph 9. In that case, this Court noted that despite the awkward way the provision at issue was drafted, the applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal, thereby resulting in the release of an offender. I cannot see how this could be otherwise in the present case. Indeed, on appeal, the RAD must necessarily consider the RPD decision and the record available before determining how it should dispose of the matter, including whether it is preferable to dispose of the appeal in accordance with paragraph 111(1)(c) and subsection 111(2). The extent or nature of its review of the decision and its assessment of the record cannot depend on the ultimate conclusion that it will reach in this regard.", - "current_to": "2016-03-29", + "text": "I agree with Pratte J.A. that deportation is not imposed as a punishment. In Reference as to the effect of the Exercise of the Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, Duff C.J. observed at p. 278 that deportation provisions were \"not concerned with the penal consequences of the acts of individuals\". See also Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (C.A.), at pp. 606-07, and Hoang v. Canada (Minister of Employment and Immigration), supra. Deportation may, however, come within the scope of a \"treatment\" in s. 12. The Concise Oxford Dictionary (1990) defines treatment as \"a process or manner of behaving towards or dealing with a person or thing ....\" It is unnecessary, for the purposes of this appeal, to decide this point since I am of the view that the deportation authorized by ss. 27(1)(d)(ii) and 32(2) is not cruel and unusual.\n\nThe general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072:\n\nThe criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 668, \"whether the punishment prescribed is so excessive as to outrage standards of decency\". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-34", + "id": "scc-855-34", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 62–64", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 34", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, subsection 111(2) is part of the context that must be examined as a whole to determine the legislative intent regarding the role of the RAD in all cases mentioned under subsection 111(1). This is especially so because paragraph 111(2)(b) expressly refers to paragraphs 111(1)(a) and (b).\n\nI also note that the Minister appears to suggest that the word “wrong” is synonymous or the equivalent to the word “unreasonable”: Appellant’s MFL at para. 80. Again, I cannot accept this argument. This is not the ordinary meaning of the word “wrong”, nor is it its customary meaning in a legal context.\n\nThe ordinary meaning of the word “wrong” is “not correct or true”, “incorrect”, “mistaken”: The Oxford English Dictionary, 3d ed., s.v. “wrong”. The French version “erronée” has the exact same ordinary meaning, that is, “fausse”, “incorrecte”, “inexacte”, “mal fondée”: Le nouveau petit Robert, 2006, s.v. “erroné”. This wording definitively points to the standard of correctness. In addition, the legislator’s intent to use the word “wrong” in its ordinary meaning is, in my view, supported by the legislative history, to which I will refer later.", - "current_to": "2016-03-29", + "text": "The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately.\n\n(c) Section 15\n\nAlthough the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the Charter , the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal, that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens.\n\n2.Do ss. 82.1 and 83 of the Immigration Act, 1976 or Reliance on the Certificate Authorized by s. 83, infringe s. 7 of the Charter ?", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-35", + "id": "scc-855-35", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 65–66", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 35", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, the Minister’s position can only be based on the assumption that the legislator meant to apply one of the deferential standards of review applicable to findings of fact, be it in the context of a judicial review or of an appeal from a trial court. No such presumption applies here, as the legislator made it clear that the RPD is not entitled to err, be it in law, in fact or in mixed and fact and law. As mentioned earlier, it would make little sense to give the word “wrong” a different meaning depending on whether it relates to the words “in law”, “in fact” or “in law and in fact” used in paragraph 111(2)(a). This would be contrary to the most basic rule of statutory interpretation.\n\nFurthermore, it appears from a search of the federal legislation and regulations that the word “wrong”, as used in paragraphs 111(2)(a) and 67(1)(a) of the IRPA, has not been used in any other federal statute or regulation. By contrast, there are many examples of statutes and regulations that capture the standard of reasonableness through the use of words such as “reasonable” or “reasonably”. I gave an example of each at paragraph 50 above. Thus, the IRPA’s unique provisions were expressly crafted to give effect to the legislator’s particular intent in respect of this sui generis scheme.", - "current_to": "2016-03-29", + "text": "Two separate sets of questions were stated on the main appeal -‑ firstly, whether ss. 82.1 and 83 themselves infringe s. 7 and if so whether they can be saved under s. 1, and secondly whether reliance on the certificate authorized by s. 83 infringes s. 7 in a manner that cannot be saved under s. 1. I agree with the submissions of both parties that the question of whether ss. 82.1 and 83 violate s. 7 was properly before the Federal Court of Appeal and should have been answered. It can therefore be addressed by this Court on appeal from the decision of the Federal Court of Appeal.\n\nThe section 7 violation raised in both questions involves the operation of a certificate issued under s. 83 of the Act to deprive the respondent of an appeal under s. 72(1)(b) of the Act. These questions raise two issues -- first, whether the substantive provisions violate s. 7 and secondly, whether the procedure followed by the Review Committee results in a s. 7 violation. I will deal with these issues in that order.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-36", + "id": "scc-855-36", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 67–68", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 36", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "At the hearing, the Minister submitted that the most telling characteristic of the RAD’s appeal process is that in the vast majority of cases (including the matter before us), the RAD determines the appeal on the basis of the record of the RPD proceedings: subsection 110(3) of the IRPA. This, he submits, leads to the conclusion that the legislator intended that all findings of fact (and not only those involving the assessment of oral evidence) be reviewed on the standard of reasonableness or of palpable and overriding error. I need only use one example to illustrate why I disagree that this is not the only inference that can be drawn from subsection 110(3). The present appeal is based solely on the record available before the judge. Still, as mentioned earlier, once it has been ascertained that the judge chose the appropriate standard of review for the question before him, the Court “steps into the shoes” of the judge to assess if he correctly applied that standard. No deference is owed in that respect, although the Court will carefully consider the decision under appeal.\n\nAdmittedly, inasmuch as paragraph 111(2)(a) is relevant to the analysis, subsection 110(3) is also part of the context that must be considered. However, subsection 110(3) is simply not as determinative as the Minister’s argument above suggests.", - "current_to": "2016-03-29", + "text": "The practical significance of ss. 82.1 and 83 of the Act stems from their interaction with the rights of appeal from a s. 32(2) deportation order provided by s. 72(1) of the Act. Section 72(1)(a) provides for a true appeal, based on any question of law or fact or mixed law and fact. Under s. 72(1)(b), Parliament has granted a further appeal on the ground that \"having regard to all the circumstances of the case, the person should not be removed from Canada\". This latter ground of appeal grants the Immigration Appeal Board discretion to quash a deportation order notwithstanding the fact that the individual falls within one of the categories in s. 27(1) such that the deportation order was properly made under s. 32(2). It thus allows for clemency from deportation on compassionate grounds.\n\nSection 82.1 sets out the conditions which may give rise to an investigation by the Review Committee and the procedure to be followed in such an investigation. In general terms the Solicitor General and the Minister of Employment and Immigration may make a report to the Review Committee in respect of a permanent resident who has launched an appeal pursuant to s. 72(1)(b) where they are of the opinion, based on security or criminal intelligence reports, that that person is likely to engage in organized crime, espionage, acts of violence that might endanger the lives or safety of persons in Canada, or subversion by force of any government. In the case of the respondent the joint report was based on s. 19(1)(d)(ii):\n\n19. (1) . . .\n\n(d) persons who there are reasonable grounds to believe will\n\n. . .", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-37", + "id": "scc-855-37", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 69–71", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 37", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "I now turn to paragraph 111(2)(b). It provides that once an error has been identified (paragraph 111(2)(a)), the RAD may refer the matter back for redetermination with the directions that it considers appropriate only if it is “of the opinion” that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.\n\nThis also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.\n\nOne can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD’s findings of fact regarding the relative weight of testimonies and their credibility or lack thereof.", - "current_to": "2016-03-29", + "text": "(ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;\n\nWhen the Review Committee receives such a joint report, it must conduct an investigation into the grounds on which it is based and report to the Governor in Council. Where, after considering the report of the Review Committee, the Governor in Council is satisfied that the person does fall within one of the categories in s. 82.1(2) (the categories pursuant to which the Ministers can make a joint report to the Review Committee), he or she may direct the issuance of a certificate under s. 83. The effect of this certificate is to direct the Immigration Appeal Board to dismiss any appeal made pursuant to s. 72(1)(b). In other words, the individual's appeal will be limited to questions of fact or law or mixed fact or law.\n\nSubstantive Ground", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-38", + "id": "scc-855-38", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 72–74", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 38", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD.\n\nSimilarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings.\n\nThat said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.", - "current_to": "2016-03-29", + "text": "The respondent submits that the impugned legislation is inconsistent with s. 7 of the Charter because it creates a process whereby he is deprived, contrary to the principles of fundamental justice, of his right to appeal against deportation on the ground set out in s. 72(1)(b). The necessary implication of this position is that it is a principle of fundamental justice that a permanent resident who is the subject of deportation proceedings be afforded an appeal on all of the circumstances of the case. Otherwise it cannot be a violation of principles of fundamental justice for Parliament to limit the availability of such an appeal. In my view s. 7 does not mandate the provision of a compassionate appeal from a decision which, as I have already concluded, comports with principles of fundamental justice.\n\nBefore a deportation order can be issued against a permanent resident, an inquiry must be conducted by an adjudicator to determine whether the permanent resident does fall into one of the classes in s. 27(1). Section 72(1)(a) provides for an appeal from such a deportation order on any question of law or fact or mixed law and fact. The decision of the Board is subject to appeal to the Federal Court of Appeal on a question of law if leave is granted by that Court (s. 84 of the Act (now s. 83)). These rights of appeal offer ample protection to an individual from an erroneous decision by the adjudicator. The question is whether principles of fundamental justice require more than this. In order to answer this question it is necessary to consider the \"nature, source, rationale and essential role\" of the right to appeal from deportation orders under the Act and the evolution of that right: Re B.C. Motor Vehicle Act, supra.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-39", + "id": "scc-855-39", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 75–76", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 39", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Before concluding my analysis of the wording and scheme of the IRPA, I will say a few words about another argument raised by the Minister that could in theory fit in this analysis, given that it may address the objective set out in paragraph 3(2)(a) of the IRPA. Without providing any evidence to support his argument, the Minister states that unless the RAD applies a standard involving a high level of deference to the RPD findings of fact, it would be impossible for the RAD to fulfill its mandate because it would be required to peruse an enormous amount of documentation.\n\nAs mentioned earlier, I reviewed a large sample of decisions of the RAD that applied the approach suggested by the judge in this case. The RAD members in question had chosen to do so even after other Federal Court decisions indicated that the standard of palpable and overriding error could be used to review the RPD’s findings of facts. I note in passing that I was impressed by the general quality of those decisions; this certainly bodes well for the future. That said, I saw no indication that the RAD has any difficulty fulfilling its mandate when conducting substantive reviews of appealed RPD decisions. Certainly, there is no mention of this in any of the decisions that followed the approach described by the judge in this matter. A few members of the RAD have decided to follow the approach suggested in Spasoja. I understand that this is mostly because they felt that it was easier to apply a standard that was already well defined, not because they did not have the time or the resources to conduct the substantive review of the documents on file that would be mandated if a less deferential standard were applied.", - "current_to": "2016-03-29", + "text": "The Immigration Act, S.C. 1910, c. 27, did not provide any specific grounds of appeal. A person ordered deported could only resort to the Minister who, under s. 19, had the authority to overturn a deportation order on unspecified grounds. The Immigration Act, R.S.C. 1952, c. 325, provided for an immigration appeal board; however, appeals against deportation orders remained under the control of the Minister. The appeal board heard only those appeals directed to it by the Minister and the Minister retained the power to confirm or quash the appeal board's decision or substitute his decision as he deemed just and proper. The 1966 White Paper on Immigration criticized the broad overriding power of the Minister with respect to appeals, and recommended that a reconstituted Immigration Appeal Board have authority to deal conclusively with appeals against deportation orders except in \"security cases\". In 1967, the Immigration Appeal Board Act, S.C. 1966‑67, c. 90, established an independent Immigration Appeal Board. Section 11 provided for appeals on any questions of law or fact or mixed law and fact. Section 15, for the first time, conferred upon the Board the power to stay or quash a deportation order made against a permanent resident on the basis of all the circumstances of the case. However s. 21 provided that that new power was still subject to the discretion of the Minister and the Solicitor General who could certify their opinion, based on security or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. In Prata v. Minister of Manpower and Immigration, supra, Martland J. stated at p. 381:", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-40", + "id": "scc-855-40", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 77–79", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 40", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "In any event, and as indicated above at paragraphs 49 and 51, the number of appeals and the time and effort required on each appeal is for the legislator to consider. I find no indication in the wording of the IRPA, read in the context of the legislative scheme and its objectives, that supports the application of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law.\n\nAt this stage of my analysis, I find that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD: paragraph 111(2)(b) of the IRPA.\n\nI also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision-maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing.", - "current_to": "2016-03-29", + "text": "The effect of s. 21 is to reserve to the Crown, notwithstanding the powers conferred upon the Board by the Act, the right, similar to the prerogative right which existed at common law, to determine that the continued presence in Canada of an alien, subject to a deportation order, would not be conducive to the public good.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-41", + "id": "scc-855-41", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 80–83", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 41", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "I will now look at the IRPA’s legislative evolution and history. Despite the relatively low weight generally given to legislative history, I agree with the Federal Court in Spasoja that on the issue before us, it is particularly instructive and simply impossible to ignore. As mentioned, I believe that both the legislative evolution and its history confirm the conclusion that I have reached at this stage of my analysis.\n\nAlthough much of what I will say here has been discussed in various decisions of the Federal Court (see, for example, Djossou at paras. 74-85 and Spasoja at paras. 32-38), it is worthwhile to set it out again, as it provides useful indications as to how the legislator envisioned the role of the RAD and how the two-tier administrative decision-making process was understood to provide a fair and more efficient process.\n\nFrom 1985 until the enactment of the IRPA, the determination of refugee claims was governed by sections 67-69.1 of the Immigration and Refugee Act, R.S.C. 1985, c. I-2. Refugee claims were decided by a quorum of two members of the Convention Refugee Determination Division, unless claimants consented to have their case determined by a single member. There was no appeal, and the only recourse was judicial review.\n\nBill C-11 (now the IRPA), which received Royal Assent on November 1, 2001, provided for the creation of a Refugee Appeal Division (the RAD) within the Immigration and Refugee Board. In 2007, a private Member’s bill (Bill C-280) was introduced to implement the provisions relating to the RAD (sections 110 and 111 particularly), but it never received Royal Assent.", - "current_to": "2016-03-29", + "text": "The Immigration Appeal Board Act was repealed by the Immigration Act, 1976, s. 128. Section 72 of the Immigration Act, 1976 effectively consolidated ss. 11 and 15 of the former Immigration Appeal Board Act into one section setting out two separate grounds of appeal. However in my view it did not change the nature of the decision that could be made by the Board \"having regard to all the circumstances of the case\". That decision remained, as it had been under the 1967 Act, an exercise of discretion based on compassionate grounds. Section 83 of the Immigration Act, 1976 continued to limit the availability of relief based on all the circumstances of the case. Such an appeal had to be dismissed if the Minister and the Solicitor General certified their opinion that, based on security or criminal intelligence reports, it would be contrary to the national interest to permit it. Finally in 1984 the Security Intelligence Review Committee was established by the CSIS Act. The Review Committee was assigned various functions under several Acts, including the Immigration Act, 1976. Section 83 was repealed and s. 82.1 and an amended version of s. 83 were substituted. Section 82.1 assigned to the Review Committee the task of investigating and reporting to the Governor in Council as to whether a permanent resident came within the classes of persons not entitled to an appeal on all the circumstances of the case. However, the decision as to whether to direct the issuance of a certificate under s. 83 is that of the Governor in Council.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-42", + "id": "scc-855-42", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 84–86", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 42", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Another Bill C-11, entitled the Balanced Refugee Reform Act, was introduced in March 2010. It proposed to bring the unproclaimed RAD provisions of the IRPA into force within two years of its Royal Assent. It also proposed changes to the existing RAD provisions, such that the RAD would have the power to accept new evidence in certain circumstances and the ability to hold a hearing in specified situations (subsections 110(4) and (6)). It received Royal Assent on June 29, 2010.\n\nIn February 2012, Bill C-31, entitled Protecting Canada’s Immigration System Act, was introduced. It proposed further changes to the RAD provisions; in particular, it proposed limitations on access to the appeal provided for in the IRPA by several categories of refugee claimants, and barred appeals on cessation and vacation decisions (see subsection 110(2) of the IRPA). It received Royal Assent on June 28, 2012.\n\nOn December 15, 2012, the 2010 and 2012 amendments came into force and the RAD was formally launched. As mentioned, although the legislative history is not in any way determinative and should not to be given undue weight as to the legislative intent (CN v. Canada at para. 47), it remains useful to consider statements of the Minister responsible for the legislation, as well as those of others directly involved in its development.", - "current_to": "2016-03-29", + "text": "It can thus be seen that there has never been a universally available right of appeal from a deportation order on \"all the circumstances of the case\". Such an appeal has historically been a purely discretionary matter. Although it has been added as a statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in cases involving serious security interests.\n\nIf any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a \"true\" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7.\n\nProcedural Ground", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-43", + "id": "scc-855-43", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 87", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 43", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "When Bill C-11 was tabled, Joan Atkinson, Assistant Deputy Minister, noted that the introduction of single-member RPD panels was to be offset by the introduction of the claimants’ right of appeal before the RAD: Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 27 (May 17, 2001) at 1140 in Joint Book of Authorities (JBA), Part II, Vol. 1, Tab 10. Similarly, the Honourable Elinor Caplan, who was the Minister responsible for the bill, underlined that: The whole purpose [of the RAD] is to ensure that the correct decision is made ... Our expectation is that … the ability of the RAD to fix mistakes will give greater assurance to the Federal Court in the decision making at the IRB. In that way, we will see fewer cases actually given review at the Federal Court. (Standing Senate Committee on Social Affairs, Science and Technology, 37th Parliament, 1st Session, Issue 29 (October 4, 2001) in JBA, Part II, Vol. 1, Tab 11; emphasis added)", - "current_to": "2016-03-29", + "text": "The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. This argument was the basis for the judgment of the majority in the Court of Appeal. I have already concluded that the respondent can assert no substantive right to an appeal on compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this basis is provided. Accordingly, Parliament could have simply provided that a certificate could issue without any hearing. Does the fact that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to complain that the hearing does not comport with the dictates of fundamental justice? It could be argued that the provision of a hearing ex gratia does not expand Parliament's constitutional obligations. I need not resolve this issue in this case because I have concluded that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-44", + "id": "scc-855-44", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 88", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 44", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Peter Showler, former Chairman of the IRB, stated the following as to why it would be appropriate to reduce the number of members dealing with refugee claims from two to one: In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions. Appeals to the RAD will be in writing only and will be reviewed by experienced RPD decision-makers with the power to affirm the RPD decision, to set it aside and substitute their own decision, or to refer the matter back to the RPD for a rehearing on particular issues in exceptional cases where it might be necessary to hear additional evidence. We estimate the workload of the RAD will be about 8,000 to 9,000 cases per year, and we intend to equip the division with a corresponding level of staff and resources. It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD. However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues.", - "current_to": "2016-03-29", + "text": "These proceedings took place within the framework of several legislative provisions and Review Committee Rules. Section 82.1(3) of the Immigration Act, 1976 provides that in an investigation by the Review Committee pursuant to a joint report by the Solicitor General and the Minister of Employment and Immigration, ss. 43, 44 and 48 to 51 of the CSIS Act apply, subject to certain specific modifications and with such other modifications as the circumstances require. Section 48(2) of the CSIS Act provides that no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person. Pursuant to s. 39(1) of the Act, the Review Committee adopted the \"Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function Under Paragraph 38(c) of the Canadian Security Intelligence Service Act\". Rules 45 to 51 set out the procedure relating to the making of representations under s. 48(2) of the CSIS Act. A party to an oral hearing may be represented by counsel, may call and examine witnesses and may make representations (Rule 48(1)). It is within the Committee's discretion to exclude from the hearing one or more parties during the giving of evidence or making of representations by another party (Rule 48(3)). It is also within the Committee's discretion, in balancing the requirements of preventing threats to the security of Canada and providing fairness to the person affected, to determine whether a party is entitled to cross-examine witnesses called by other parties (Rule 48(2)) and whether, if a party has been excluded from portions of the hearing, the substance of the evidence given or the representations made by the other party should be disclosed to that party (Rule 48(4)).", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-45", + "id": "scc-855-45", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 88–89", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 45", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "As I said to this committee before, we don’t see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well. […] So there’s a significant difference between them. We think the total result will end up the same as before. But as I’ve already indicated, we think we will have a better-quality decision-because we’ll have had two goes, two kicks, at the can. There’s not only been the original decision, but also a clear, authoritative, experienced review of that decision. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 5 (March 20, 2001) at 0915-20, 0925 in JBA, Part II, Vol. 1, Tab 6; emphasis added)\n\nMinister Elinor Caplan further stated that: Bill C-11 will create a new Refugee Appeal Division at the IRB to hear appeals on merit for decisions on refugee claims, rendering the system both faster and fairer by providing a mechanism to correct error in the first instance. […] Also I want to clarify that the RAD, the Refugee Appeal Division is not a second hearing. It is a review on merit of the hearing that took place at the Refugee Protection Division. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 22 (May 8, 2001) at 0845, 0935 in JBA, Part II, Vol. 1, Tab 8)", - "current_to": "2016-03-29", + "text": "The scope of principles of fundamental justice will vary with the context and the interests at stake. In R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J., writing for the majority, stated at p. 361:\n\nIt is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-23). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.\n\nSimilarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards. See: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682.\n\nIn Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. explained at p. 539 that in assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual:", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-46", + "id": "scc-855-46", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 90–91", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 46", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "At the second reading of the private Member’s bill presented in 2007, Member of Parliament Richard Nadeau referred to a number of systemic considerations justifying the establishment of the RAD, including the need for more efficiency. This particular need had been described as follows by the Canadian Council for Refugees: “[a] specialized appeal division for refugee matters can deal much more efficiently with unsuccessful claimants than the Federal Court… The refugee appeals division can do a better job of correcting errors of law and fact”: House of Commons Debates, 39th Parliament, 1st Session, No. 122 (March 2, 2007) in JBA, Part II, Vol. 1, Tab 15 at 7569.\n\nDuring the debate on the second reading of Bill C-11 on April 26, 2010, the Honourable Jason Kenney, then-Minister of Citizenship and Immigration, stated: The proposed new system would also include, and this is very important, a full appeal for most claimants. Unlike the appeal process proposed in the past and the one dormant in our current legislation, this refugee appeal division, or RAD, would allow for the introduction of new evidence and, in certain circumstances, provide for an oral hearing. (House of Commons Debates, 40th Parliament, 3rd Session, No. 033, Vol. 145 (April 26, 2010) at 1945 in JBA, Part II, Vol. 2, Tab 24; emphasis added)", - "current_to": "2016-03-29", + "text": "What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state, both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons, [[1987] 2 S.C.R. 309], at pp. 327 and 329; R. v. Beare, [[1988] 2 S.C.R. 387], at pp. 403-5; also my reasons in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J. and Lamer J. concurring). The interests in the area with which we are here concerned involve particularly delicate balancing. . . .\n\nIn the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases was emphasized by Lord Denning in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.), at p. 460:", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-47", + "id": "scc-855-47", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 92", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 47", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Then, on May 4, 2010, Minister Kenney pointed out before the Standing Committee on Citizenship and Immigration: However, there is finally an appeal section, which is even better than what was provided by the legislation in 2002. This new appeal division would provide most claimants with a second chance, an opportunity to introduce new evidence about their claim and to do so in an oral hearing, if necessary. And, significantly, Mr. Chairman, the bill would make it possible to remove those who would abuse our system within a year of their final IRB decision. […] I want to underscore that the refugee appeal division foreseen in the Immigration and Refugee Protection Act 2003, and proposed, for instance, in Mr. St-Cyr’s private member's bill, does not actually include, as does the RAD in Bill C-11, the ability to present new evidence and in certain cases to have an oral hearing before the appeal division decision-maker. This is an improved RAD. It’s an additional level of administrative fairness, but it’s not going to happen if we don't achieve the other streamlining in the system that the package speaks to. (Standing Committee on Citizenship and Immigration, 40th Parliament, 3rd Session, meeting No. 12 (May 4, 2010) at pp. 1535, 1610 in JBA, Part II, Vol. 2, Tab 25; emphasis added)", - "current_to": "2016-03-29", + "text": "The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information.\n\nOn the general need to protect the confidentiality of police sources, particularly in the context of drug-related cases: see R. v. Scott, [1990] 3 S.C.R. 979, at pp. 994-95. See also Ross v. Kent Inst. (1987), 57 C.R. (3d) 79, at pp. 85-88 (B.C.C.A.), in which that court held that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the Parole Board as long as he is informed of the substance of that information.\n\nThe CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of interests.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-48", + "id": "scc-855-48", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 93", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 48", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "Minister Kenney added before the Senate Committee on Social Affairs, Science and Technology: The result would be a streamlined system that would actually add greater procedural fairness, through the creation of what's known as the Refugee Appeal Division. This would allow failed claimants a full appeal of their claims. In terms of our system, Bill C-11 would provide for the following. First, the creation of a new interview with an Immigration and Refugee Board public servant, in place of a written form, early in the claims process. In our opinion, that would speed up the process and make it more efficient. Second, independent decision makers at the Refugee Protection Division of the IRB who are public servants rather than political appointees. That means that people who hold the hearings for asylum claimants will be, after those reforms, IRB officials rather than cabinet appointees. Third, a new fact-based refugee appeal division that even surpasses what refugee advocates have requested for a long time. […] The initial hearing at the Refugee Protection Division and the appeal at the Refugee Appeal Division both constitute an analysis of the risk faced by the claimant. Will they face a risk of torture or threat to their life if returned to their country of origin? . . . Our position is that once you have had two negative risk assessments — that is, once an IRB officer has looked at your case and said that you do not face risk if returned to your country and a refugee appeal decision maker has made the same decision — we do not think it is appropriate to have a third, redundant, risk assessment based on that legal criteria of risk, which is now embedded in sections 96 and 97 of the Immigration and Refugee Protection Act.", - "current_to": "2016-03-29", + "text": "In this case the respondent was first provided with the \"Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee\". This document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing, the respondent was provided with an extensive summary of surveillance of his activities (the \"Chronology of Information\") and a \"Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco\". Although the first day of the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my view, these various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.\n\nThe respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to allow such cross-examination:", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-49", + "id": "scc-855-49", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 93–95", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 49", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "(Standing Senate Committee on Social Affairs, Science and Technology, 40th Parliament, 3rd Session, Issue 11 (June 22, 2010) at 11:14, 11:19 in JBA, Part II, Vol. 2, Tab 34; emphasis added)\n\nThe same idea was reiterated by Minister Kenney during the second reading of Bill C-31, when it was presented in the House of Commons in 2012: I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal. (House of Commons Debates, 41st Parliament, 1st Session, No. 090, Vol. 146 (March 6, 2012) at 1515 in JBA, Part II, Vol. 2, Tab 36)\n\nShortly thereafter, he added: What we are proposing in C-31 goes above and beyond our legal and humanitarian obligations under both the Charter of Rights and Freedoms and the UN convention on refugees. It proposes an asylum system that would be universally accessible and that would respect absolutely our obligation of non-refoulement of people deemed to be in need of our protection. It would provide access to a full and fair hearing at an independent quasi-judicial body, which again goes above and beyond our charter and UN convention obligations. It would create for the first time a full and fact-based appeal at the refugee appeal division, accessible to the vast majority of failed asylum claimants who lose at the first instance. (House of Commons Debates, 41st Parliament, 1st Session, No. 094, Vol. 146 (March 12, 2012) at 1545 in JBA, Part II, Vol. 2, Tab 37; Emphasis added)", - "current_to": "2016-03-29", + "text": "Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may make in support of the Statement of Circumstances, there would be the opportunity for the applicant's counsel to cross-examine.\n\nThe respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure followed by the Review Committee in this case did not violate principles of fundamental justice.\n\nVI. Conclusion\n\nI would therefore allow the appeal, dismiss the cross-appeal, both with costs, and answer the constitutional questions as follows:\n\nMain Appeal\n\n1.(a) Do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now ss. 81 and 82 of the Immigration Act, R.S.C., 1985, c. I‑2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ?\n\nAnswer:Assuming without deciding that s. 7 applies, the answer is no.\n\n(b) If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter , are they justified by s. 1 of the Charter ?\n\nAnswer:This question does not have to be answered.\n\n2.(a) Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I‑2) filed in the respondent's case result in an infringement of his rights pursuant to s. 7 of the Charter , because the process followed by the Security Intelligence Review Committee did not meet the requirements of s. 7?", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-50", + "id": "scc-855-50", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 96–99", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 50", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "From these excerpts, I understand that the legislator expected to create a more efficient process by having a single member of the RPD evaluate each refugee claim, and enabling this decision-maker to issue his or her decision more quickly, with the assurance that any error would be corrected on appeal by another specialized decision-maker with experience and strong analytical skills.\n\nRather than systematically holding a second hearing on appeal, which might delay the RAD’s final decisions on refugee claims, the claimants’ second “kick at the can” on appeal (see paragraph 89 above) was to be done on the basis of the record before the RPD, except in limited cases where new evidence would be admitted and the requirements of subsection 110(6) were fulfilled.\n\nThe RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts. This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness.\n\nThis appears to be substantially in line with the submissions of the United Nations High Commissioner for Refugees (UNHCR) on Bill C-31, in which the UNHCR noted that on an appeal in respect of refugee claims, the decision-maker should have the jurisdiction to review questions of both fact and law, be able to accept and assess new evidence, and to recognize refugees independently: UNHCR Submission on Bill C-31 Protecting Canada’s Immigration System Act, May 2012, online: UNHCR Canada < http://www.unhcr.ca/newsroom/publications/> in JBA Part I, Vol. 4, Tab 93.", - "current_to": "2016-03-29", + "text": "Answer: Assuming without deciding that s. 7 applies, the answer is no.\n\n(b) If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter , is it justified by s. 1 of the Charter ?\n\nAnswer:This question does not have to be answered.\n\nCross‑Appeal\n\n1.(a) Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I‑2) infringe or deny the rights guaranteed by ss. 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender?\n\nAnswer:With respect to s. 15, the answer is no. Assuming, without deciding, that either s. 7 or s. 12 apply, the answer is no.\n\n(b) If the paragraph and subsection referred to above do infringe or deny the rights guaranteed by ss. 7 , 12 and 15 of the Charter , are they justified by s. 1 of the Charter ?\n\nAnswer:This question does not have to be answered.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-51", + "id": "scc-855-51", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "[1992] 1 SCR 711", + "act_short": "Chiarelli", + "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 100–102", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", + "marginal_note": "excerpt 51", + "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", + "part": "Supreme Court of Canada", "division": "", - "text": "It was certainly expected in 2001 that the workload of the RAD would be important (i.e., 8,000 to 9,000 cases annually) and the IRB’s intent was to equip the new division with a corresponding level of staff and resources. The then-chairman of the IRB appears to have had no issue with respect to the capacity (in terms of staff and resources) of the RAD to substantively review RPD decisions on the merits and remedy errors made by the RPD: see above at paragraph 88. There is no indication that this exercise was viewed as a useless duplication of the work of the RPD, for this is exactly what justified reducing the number of members on the RPD panel involved in reviewing each refugee claim. It would certainly be more efficient to have only one instead of two decision-makers routinely involved in preparing and holding a hearing.\n\nThe restrictions on the claimants’ right to appeal introduced in 2012 would necessarily, in and of themselves, reduce the caseload of the RAD, while the other provision introduced expanded the RAD’s ability to admit new evidence.\n\nThe efficiency contemplated here by the legislator (that is, a more quickly-reached decision by a single member, usually reviewed – where the right of appeal exists – by a member of the RAD, generally without the need to hold a second hearing to correct any mistakes), as well as the legislator’s intention to assign the resources necessary to achieve this aim, are quite distinct from the considerations driving the judicial policy described in Housen and incorporated in the factors of Newton.", - "current_to": "2016-03-29", + "text": "Appeal allowed and cross‑appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross‑appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.", + "current_to": "1992-03-26", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" }, { - "id": "fca-143136-52", + "id": "scc-1940-1", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 103–106", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 1–2", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.\n\nThus, the RAD erred by applying the reasonableness standard to the RPD’s analysis of the objective evidence regarding state protection and to its conclusion in that respect. I would, therefore, dismiss the appeal with costs to the respondents.\n\nI wish to thank the interveners for their excellent submissions, which were quite useful.\n\nIn light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD’s findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. \"Johanne Gauthier\" J.A. “I agree Wyman W. Webb J.A.” “I agree D.G. Near J.A.”", - "current_to": "2016-03-29", + "text": "The fundamental question in this appeal is whether the factor of potential foreign hardship can be considered in deciding whether to uphold an order to remove an individual from Canada. More specifically, this appeal concerns the interpretation of the phrase “having regard to all the circumstances of the case”, as employed in s. 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the “Act”). These words define, in part, what has come to be called the “discretionary” or “equitable” jurisdiction of the Immigration Appeal Division (“I.A.D.”) of Canada’s Immigration and Refugee Board (“I.R.B.”).\n\nThe question is whether this jurisdiction allows the I.A.D. to consider the potential foreign hardship a permanent resident would face if removed from Canada, or whether only domestic factors can be taken into account. The appellant, Huor Chieu, argues for the former interpretation, on the grounds that a decision regarding whether an individual is to be removed must be informed by where he or she will be removed to. The respondent Minister of Citizenship and Immigration supports the latter interpretation, arguing that where an individual will be removed to is not decided until after the I.A.D. upholds his or her removal, and it is therefore premature for the I.A.D. to consider foreign factors in deciding whether to quash or stay a removal order. The Minister’s position was adopted in the courts below.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-1", + "id": "scc-1940-2", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 1–3", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 3–4", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The matter before the Court is an appeal from a judgment of Justice Jocelyne Gagné of the Federal Court (the judge), which allowed the application for judicial review of Parminder Singh (the respondent) of a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada regarding his claim for refugee protection. The respondent’s refugee protection claim had previously been dismissed by the Refugee Protection Division (RPD), not only because he had failed to satisfactorily establish his identity, but because he was not credible and had an internal flight alternative available to him in India.\n\nThe appeal raises for the first time the issue as to how to interpret subsection 110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], which governs admissible evidence before the RAD. This provision was enacted as part of the Balanced Refugee Reform Act, S.C. 2010, c. 8 [BRRA], the objective of which was to amend and implement unproclaimed provisions in the IRPA providing for the creation of the RAD.\n\nAt the end of her reasons, the judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?", - "current_to": "2016-03-29", + "text": "Ahmad Abdulaal Al Sagban, in the companion case of Al Sagban v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 133, 2002 SCC 4, reasons which are also being released on this date, makes arguments similar to the appellant’s regarding the proper interpretation of s. 70(1)(b). Chieu and Al Sagban were heard together before this Court. Some of the facts and lower decisions in Al Sagban will be referred to in the course of these reasons.\n\nI conclude that the appellant’s arguments should prevail and that the I.A.D. can consider foreign hardship in deciding whether to quash or stay a removal order under s. 70(1)(b). II. Relevant Statutory Provisions", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-2", + "id": "scc-1940-3", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 4–6", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 5", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The Minister of Citizenship and Immigration (the Minister) argued that the Federal Court erred in failing to apply the criteria laid out in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No 1632 [Raza] for the purposes of subsection 110(4), and that the RAD was entitled to refuse to admit into evidence a grade 12 diploma (the Diploma) that had been seized by the Canada Border Services Agency (CBSA) and that had not been submitted before the RPD. For the reasons that follow, I am of the view that the Minister’s submissions must be accepted and that the appeal must therefore be allowed.\n\nThe respondent is a citizen of India. He alleges to have been friends with one Bhupinder Singh when he was pursuing his studies, but that he only saw him occasionally following his graduation in 2002. Nonetheless, this individual apparently showed up at the respondent’s home in November 2012 to spend the night, before leaving for an unknown destination.\n\nSeveral days later, the respondent claims that the police arrested him in order to question him about Bhupinder Singh. He was purportedly held and tortured for three days before being released without conditions, when representatives from his village intervened on his behalf. Following this incident, he was apparently hospitalized for stomach pains. In support of his claims, he submitted a medical certificate to the RPD indicating that he had received treatment for injuries and vomiting, which contained a list of prescribed medications.", - "current_to": "2016-03-29", + "text": "There are three statutory provisions which are at the heart of this appeal — ss. 70(1), 52 and 114(2) of the Act, which are set out below. Many other provisions are relevant to the particular facts of this case and to the overall scheme of the Act. They will be cited as they become relevant throughout the course of these reasons. Section 70(1) establishes the I.A.D.’s jurisdiction with respect to appeals by permanent residents from removal orders entered against them (although not law, I have included the marginal notes to the relevant provisions of the Act throughout these reasons as an explanatory aid): 70. (1) [Appeals by permanent residents and persons in possession of returning resident permits] Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely, (a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-3", + "id": "scc-1940-4", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 7–9", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 6", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "About two weeks after this first incident, the respondent contends that the police arrested him a second time and detained him for 24 hours in order to question him further about Bhupinder Singh, before he was released once again due to the intervention of representatives from his village.\n\nAfter this second incident, the respondent alleges that his mother hired a smuggler to get him out of India. The respondent arrived in Canada on January 29, 2013, and claimed refugee protection at the port of entry. He handed over to the CBSA the driver’s licence and voter’s card the smuggler had obtained for him, as well as two school certificates issued in 2000 and 2002. The documents were seized, and the CBSA concluded after an analysis that the driver’s licence and voter’s card were probably forgeries. The respondent was initially detained due to the difficulty in establishing his identity, and was later released on condition that he report weekly to the CBSA’s offices.\n\nThe hearing before the RPD was held on April 2, 2013, and the notice of that decision was issued on May 7, 2013. First, the RPD found that the respondent had failed to establish his identity. In this regard, it noted that the CBSA had determined that the driver’s licence and voter’s card were probably forgeries, and opined that his credibility had been undermined by the fact that he had not made any efforts to obtain genuine versions of these documents through his family in India.", - "current_to": "2016-03-29", + "text": "Section 52 is the provision under which the country of removal is determined: 52. (1) [Voluntary departure] Unless otherwise directed by the Minister, a person against whom an exclusion order or a deportation order is made may be allowed to leave Canada voluntarily and to select the country for which that person wishes to depart. (2) [Place to which removed] Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to (a) the country from which that person came to Canada; (b) the country in which that person last permanently resided before he came to Canada; (c) the country of which that person is a national or citizen; or (d) the country of that person’s birth. (3) [Idem] Where a person is to be removed from Canada and no country referred to in subsection (2) is willing to receive him, the person, with the approval of the Minister, or the Minister, may select any other country that is willing to receive that person within a reasonable time as the country to which that person shall be removed. (4) [Idem] Notwithstanding subsections (1) and (2), where a removal order is made against a person described in paragraph 19(1)(j), the person shall be removed from Canada to a country selected by the Minister that is willing to receive the person.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-4", + "id": "scc-1940-5", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 10–11", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 7–9", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "As for the school certificates, the RPD’s record contained only the one that had been issued in 2000. Questioned about the 2002 Diploma, the respondent stated that he believed that it was still in the possession of Citizenship and Immigration Canada and that he did not understand why a copy of it had not been forwarded to the RPD. This explanation was rejected by the RPD, and as a result there was no evidence to corroborate his claim of having studied with Bhupinder Singh until 2002.\n\nLastly, the respondent had produced a copy of a ration card as well as a birth certificate. The ration card had been issued in 2008 but had been corrected in 2011 to remove the respondent’s sister and replace the family photo, following his sister’s marriage in 2010. The RPD found that the one-year gap between the marriage and the correction to the family’s ration card affected the probative value of the document, since the photo attached to the ration card seemed to have been affixed permanently rather than in a manner that would permit it to be changed. Given that the four identity documents filed as evidence by the respondent raised concerns, the birth certificate alone was not sufficient to establish his identity.", - "current_to": "2016-03-29", + "text": "Section 114(2) confers a discretionary decision-making power on the Minister: 114. . . . (2) [Exemption from regulations] The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. III. Facts\n\nThe appellant was born in Cambodia on December 2, 1966. In 1975, he and his family fled to Vietnam in order to escape the Cambodian civil war. The Chieu family resided in Vietnam under a series of temporary resident permits until 1993. On February 12, 1988, the appellant married a Vietnamese citizen. They had a son on November 20, 1988.\n\nIn 1989, the appellant’s sister came to Canada, sponsored by her Canadian fiancé. In 1991, she in turn sponsored her family, including the appellant, to come to Canada. The appellant submitted his Application for Permanent Residence in Canada at the Canadian Embassy in Bangkok, Thailand, on March 17, 1992. In the application, he misrepresented his status, stating that he was single with no dependents. He did this in order to be eligible to be sponsored as an accompanying dependent of his father as a member of the family class. A previous application, in which he had correctly stated his marital status, had been refused. The misrepresentation was not discovered at the time, and the appellant was landed in Canada on October 21, 1993, along with his parents and brothers. He became a permanent resident of Canada at that time.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-5", + "id": "scc-1940-6", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 12–13", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 10", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Second, the RPD continued its analysis to conclude that the respondent’s narrative was not credible. The RPD pointed out that the respondent had changed the chronology of important events when he amended his Basis of Claim form, having initially placed his father’s cardiac problems after the two arrests, and then between the two arrests. Given the significance of the events in question, the RPD did not accept the respondent’s explanation that he had made a mistake with the dates and had only realized his error when he received his father’s medical report. The RPD also noted that this medical report only indicated facial paralysis and bed rest for a five-day period, which does not correspond to the claim that his father was half paralysed and permanently bedridden. The RPD further concluded that the medical report relating to the respondent’s stomach issues did not corroborate his allegations of torture.\n\nEven if the respondent had been able to establish his identity and the credibility of his narrative, the RPD ultimately found that he still had an internal flight alternative. While acknowledging that Indian police have the ability to pursue individuals throughout the country, the RPD nonetheless noted that only a limited group of militant Sikhs were targeted in this manner, and that the respondent did not have the profile of someone who would be targeted, were he to move elsewhere in India.", - "current_to": "2016-03-29", + "text": "On March 29, 1994, the appellant attended at the Canada Immigration offices in Winnipeg and made an application to sponsor his wife and child to come to Canada. As a result of this disclosure, an immigration officer reported that the appellant had become a permanent resident of Canada by reason of the misrepresentation of a material fact contrary to s. 27(1)(e) of the Act, which reads: 27. (1) [Reports on permanent residents] An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who . . . (e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person . . . . An inquiry was directed to be held by the Director of Immigration for the Prairie Northwest Territories Region.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-6", + "id": "scc-1940-7", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 14–15", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 11", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "On appeal at the RAD, the respondent submitted an application to file additional evidence, namely, a copy of the Diploma. In support of his application, he filed an affidavit attesting that he had received from his former counsel, on or about June 11, 2013, a copy of his file that included a copy of the Diploma, which had apparently been faxed to his former counsel by the CBSA on February 25, 2013. He pointed out that he had been unaware of this fact prior to June 11, 2013, that it was consequently impossible for him to have produced the document before the RPD, and that he was therefore justified in asserting during his hearing before the RPD that the Diploma had been seized.\n\nThe RAD refused to allow the Diploma to be admitted into evidence. It first opined that subsection 110(4) of the IRPA should be interpreted in light of the jurisprudence that has developed around paragraph 113(a) of the same statute, and in particular on the basis of Raza, given the similar wording used in both provisions. The RAD also pointed out that the fact that evidence corroborates allegations or contradicts the findings of the RPD does not make it new evidence. Ultimately, the RAD found that the Diploma had been available to the respondent at the time of the hearing on April 2, 2013, since a copy of it had been sent to his former counsel on February 25, 2013. Considering that the respondent had not alleged any incompetence or made a complaint against his former counsel, he and his counsel had access to the Diploma and it was reasonable to expect that the document would have been presented at the hearing before the RPD. Accordingly, the RAD concluded that the Diploma was inadmissible, and as a result, that there was no ground to hold a hearing.", - "current_to": "2016-03-29", + "text": "At the inquiry of June 29, 1994, the appellant conceded that he had made a material misrepresentation on his application for permanent resident status. He further stated that he would not be making a refugee claim. The adjudicator ordered his removal pursuant to s. 32(2) of the Act, on the basis that the appellant was a person described in s. 27(1)(e) of the Act. Section 32(2) reads: 32. . . . (2) [Where person is a permanent resident] Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person. The appellant appealed the order to the I.A.D., not on legal grounds pursuant to s. 70(1)(a) — as he conceded that the removal order was correct in law — but on discretionary grounds pursuant to s. 70(1)(b). On October 30, 1995, the I.A.D. dismissed the appeal, a decision which was upheld by the Federal Court, Trial Division on December 18, 1996 and by the Federal Court of Appeal on December 3, 1998. Leave to appeal to this Court was granted on October 14, 1999. IV. Judicial History A. Immigration Appeal Division, [1995] I.A.D.D. No. 1055 (QL)", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-7", + "id": "scc-1940-8", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 16", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 12", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "On the merits, the RAD was of the view that the three issues should be reviewed on a standard of reasonableness. With respect to the identity of the respondent, the RAD concluded that the RPD had erred by failing to make a finding on the probative value of the school certificates to establish the respondent’s identity, analyzing them solely from the perspective of his credibility as to whether he had gone to school with Bhupinder Singh. Therefore, the RPD could not dismiss the birth certificate on the basis that this document alone was insufficient to establish the respondent’s identity. The RAD therefore found that the respondent’s identity had been duly established based on his school certificate and birth certificate. Second, the RAD was of the view that the RPD had not made an error of fact or of law in its overall assessment of the respondent’s credibility, and that it could reasonably doubt his credibility in light of the varying information with regard to the chronology of events he claimed to have experienced, the fraudulent or altered documents he presented as evidence, and the medical documents that did not corroborate his allegations. Given these findings, the RAD was of the opinion that it was not necessary for it to respond to the internal flight alternative issue.", - "current_to": "2016-03-29", + "text": "Board Member Wiebe noted that, in an appeal pursuant to s. 70(1)(b), the onus is on an appellant to establish that, having regard to all the circumstances of the case, he or she should not be removed from Canada. She held that the appellant Chieu failed to meet that burden. The board member found that there was “no evidence of oppression or even of significant hardship” facing the appellant in Vietnam. She also made some brief comments regarding the appellant’s lack of connections to Cambodia. However, she gave “minimal” weight to the evidence regarding foreign hardship as she believed, following Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.), that “it is premature for the Appeal Division to take into account the conditions of the person’s country of origin, as the determination of to which country the deported person will be sent rests with the Minister of Immigration”. The relevant domestic considerations did not weigh in favour of allowing the appellant to remain in Canada, and therefore the appeal was dismissed. B. Federal Court, Trial Division (1996), 125 F.T.R. 76", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-8", + "id": "scc-1940-9", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 17–18", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 13", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Two issues were raised in the application for judicial review before the Federal Court. First the Court had to determine whether the RAD erred in applying the criteria in Raza to assess the admissibility of new evidence, and then consider the application of those criteria to the facts of the case. In both cases, the judge applied the reasonableness standard of review. The first issue concerned the interpretation of the RAD’s home statute and was not subject to any of the exceptions to the presumption that this type of question is reviewable on the reasonableness standard, while the second was clearly a question of mixed fact and law.\n\nAfter comparing the wording of subsection 110(4) and paragraph 113(a) of the IRPA and acknowledging that the language was similar, the judge began by noting that the role of a Pre-Removal Risk Assessment (PRRA) officer differed from that of the the RAD. While PRRA officers are employees of the Minister and must show deference to decisions made by the RPD unless new evidence arises that would require a re-assessment of the risks set out in sections 96 and 97, the RAD is a quasi-judicial administrative tribunal that has been given the mandate of hearing appeals from decisions issued by the RPD and may set aside a decision in order to substitute the determination that, in its opinion, should have been made (IRPA, s. 111(1)). Given these distinctive roles, the judge was of the opinion that it was not appropriate to apply, mutatis mutandis, the criteria developed in the context of paragraph 113(a) to interpret subsection 110(4).", - "current_to": "2016-03-29", + "text": "The appellant obtained leave from the Federal Court, Trial Division to commence an application for judicial review of the I.A.D.’s decision pursuant to s. 82.1 of the Act. Before the court, the appellant argued that the I.A.D. had erred in not fully considering the potential hardship he would face in Cambodia, as this was the only country that was legally obliged to accept him upon removal from Canada. The appellant further argued that Hoang was a case involving the removal of a refugee and therefore does not apply to the removal of permanent residents who are not Convention refugees. Muldoon J. rejected both arguments. He held that Hoang does apply to appeals by non-refugee permanent residents pursuant to s. 70(1)(b) as “no determination has yet been made [under s. 52] regarding the country to which applicant will be deported” and, as a result, “an assessment of country conditions by the board would have been premature” (paras. 8 and 10). Muldoon J. therefore concluded that the I.A.D. was correct in refusing to consider conditions in either Vietnam or Cambodia.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-9", + "id": "scc-1940-10", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 19", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 14–15", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Relying on a statement made in the House of Commons by the Minister of Citizenship and Immigration during a debate on the establishment of the RAD to the effect that refugee claimants must be able to benefit from a “full fact-based appeal”, the judge continued this line of reasoning by adding that adopting a restrictive approach to the admissibility of new evidence would prevent the RAD from fulfilling its mission. Lastly, she noted that the implicit factors identified by the Federal Court of Appeal in Raza “find their source in the purpose of paragraph 113(a)”, according to Justice Sharlow herself. That being the case, the judge added, these factors are not transferable in the context of an appeal before the RAD.", - "current_to": "2016-03-29", + "text": "Consequently, Muldoon J. dismissed the application for judicial review. In the event that he was in error in applying Hoang outside the refugee context, he certified a serious question of general importance so that an appeal could be brought to the Federal Court of Appeal, pursuant to s. 83(1) of the Act. The certified question stated (at para. 16): Can the Appeal Division of the IRB, in the exercise of its jurisdiction to have “regard to all the circumstances of the case”, under the Immigration Act’s s. 70(1)(b), consider the country (and its conditions) to which the non-refugee appellant would, on the balance of probabilities, be removed when assessing whether “the person should not be removed from Canada”; or not, in accordance with the decision of Mr. Justice MacGuigan in a refugee case, Hoang v. Minister of Employment and Immigration (1990), 120 N.R. 193 at 195; 13 Imm. L.R. (2d) 35 (F.C.A.) quoted above herein? C. Federal Court of Appeal, [1999] 1 F.C. 605\n\nThe Federal Court of Appeal answered the certified question in the negative. Linden J.A. for the court agreed with Muldoon J. that Hoang does apply to permanent residents who are not Convention refugees, on the grounds of consistency. He felt that the confusion over this issue had arisen as a result of the decision of the Immigration Appeal Board (“I.A.B.”) in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), which had included “the degree of hardship that would be caused to the appellant by his return to his country of nationality” as one of the relevant factors to be considered under the discretionary jurisdiction of the I.A.B. The I.A.B. was the predecessor of the I.A.D. and had an identical discretionary jurisdiction pursuant to what was then s. 72(1)(b) of the Act.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-10", + "id": "scc-1940-11", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 20", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 16", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Having concluded that it was unreasonable for the RAD to have strictly applied the criteria established in Raza when it came time to interpret subsection 110(4) of the IRPA, the judge then inquired as to whether it was reasonable for the tribunal to have refused to admit the Diploma into evidence. She determined that this piece of evidence could be material to demonstrate that the RPD erred in making negative findings with respect to the respondent’s credibility, namely, that the CBSA had not confiscated the Diploma and that the respondent had not established that he had attended school with Bhupinder Singh until 2002. The judge also found it unreasonable for the RAD to have concluded that the respondent should have brought this evidence before the RPD, given that it was not in his possession and that he mistakenly believed that the CBSA still had it. As for the fact that the respondent did not file a complaint against his former counsel, the judge opined that it was unreasonable to make this a prerequisite for filing new evidence or to expect the respondent to know the procedure for filing complaints before the Barreau du Québec.", - "current_to": "2016-03-29", + "text": "Linden J.A. overruled Ribic on this point. He stated at para. 15: Let there be no confusion about it — this Court affirms its adherence to Hoang and to its application in non-refugee cases such as this. The Board cannot, in exercising its equitable jurisdiction pursuant to paragraph 70(1)(b), consider, as a circumstance, country conditions in potential destinations of deportees. Moreover, evidence relating to these countries is irrelevant and, therefore, inadmissible. The Board’s jurisdiction under paragraph 70(1)(b) is only to determine whether a person should be removed from Canada. The Board has no business considering the merits or demerits of any potential destination. Linden J.A. based this conclusion on a number of factors: precedent; the overall scheme of the Act; the wording of s. 70(1)(b) when read in its total context; a need to avoid prolonged hearings before the I.A.D.; the fact that the I.A.D. is neither designed nor equipped to deal with such issues; that allowing it to do so would create an alternative refugee system; and that the Federal Court could handle any increase in the number of judicial review applications that could potentially result from preventing the I.A.D. from examining potential foreign hardship.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-11", + "id": "scc-1940-12", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 21–22", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 17–19", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The Federal Court judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?\n\nIt is well-settled that the role of this Court when hearing an appeal of a judgment on an application for judicial review is to determine first, whether the Federal Court identified the appropriate standard of review and second, whether it applied that standard correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559; Wilson v. Atomic Energy of Canada Ltd., 2015 FCA 17 at para. 42, [2015] 4 R.C.F. 467 [Wilson] ; Telfer v. Canada (Revenue Agency), 2009 FCA 23 at paras. 18-19, [2009] F.C.J No. 71. In other words, this Court should “step into the shoes” of the Federal Court and focus on the administrative decision that is the subject of the judicial review: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 247, [2012] 1 S.C.R. 23.", - "current_to": "2016-03-29", + "text": "Having come to this conclusion, Linden J.A. canvassed four potential avenues of recourse, in lieu of an appeal to the I.A.D., through which an individual facing removal could have foreign hardship concerns taken into account: (1) voluntary departure to a safe country pursuant to s. 52 of the Act; (2) an application under s. 114(2) of the Act, asking the Minister to consider the conditions in the country to which the person is about to be sent; (3) an application for judicial review of the Minister’s s. 52(2) decision regarding the country of removal; or (4) a court challenge of the Minister’s decision on Charter or international law grounds if removal might endanger life or security of the person. Linden J.A. therefore dismissed the appeal. The I.A.D.’s reference to the appellant’s connections to Vietnam was held to be of little importance as “it was a cursory reference of no consequence in arriving at [its decision] in this case” (para. 26). V. Issue\n\nThere is one issue to be resolved in this appeal: do the words “having regard to all the circumstances of the case” in s. 70(1)(b) of the Immigration Act allow the I.A.D. to consider potential foreign hardship when reviewing a removal order made against a permanent resident? VI. Analysis\n\nIn my view, this appeal can be decided by applying principles of administrative law and statutory interpretation, as was the case in this Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 11. It is not necessary to address directly the scope and content of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms . A. Standard of Review", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-12", + "id": "scc-1940-13", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 23", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 20", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted earlier, the judge applied the reasonableness standard to the interpretation of subsection 110(4) of the IRPA. In so doing, she relied on the well-established presumption that one must normally defer to an administrative decision-maker when it is called upon to interpret a statute closely related to its function and with which it has particular familiarity: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54, [2008] 1 S.C.R. 190 [Dunsmuir]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras. 26 and 28, [2011] 1 S.C.R. 160 [Smith]; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at paras. 16 and 18, [2011] 3 S.C.R. 471; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 at para. 36, [2011] 3 S.C.R. 616 [Nor-Man]; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 167, [2013] 1 S.C.R. 467. Although this presumption is rebuttable, the judge correctly concluded that the interpretation of subsection 110(4) of the IRPA did not fall under one of the exceptions recognized by the existing jurisprudence: see, in particular Dunsmuir, at paras. 55 to 61; Nor-Man, at para. 35; Smith, at para. 26. Indeed, it is not a question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, or a constitutional question, a question regarding the jurisdictional lines between competing tribunals, or even a true question of jurisdiction.", - "current_to": "2016-03-29", + "text": "Judicial review of any administrative decision must begin with a determination of the proper standard on which the review is to be carried out. Although not explicitly discussed by the courts below in this case, it is apparent that they were reviewing the I.A.D.’s decision on a correctness basis. Is this the appropriate standard? The answer is largely provided by this Court’s decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. In that case, this Court considered, for the first time, the standard of review to be applied to decisions of the I.R.B. For legal questions of general importance, the appropriate standard was held to be correctness. Although Pushpanathan involved the Convention Refugee Determination Division (“C.R.D.D.”) of the I.R.B., not the I.A.D., many of the relevant factors are similar on this appeal.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-13", + "id": "scc-1940-14", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 24–25", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 21", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The intervener nonetheless asserted that the judge erred in selecting a reasonableness standard, on the ground that she had an obligation to put an end to the differences in interpretation resulting from the wording of subsection 110(4) within the RAD. Relying on this Court’s recent decision in Wilson, the intervener related the various different approaches adopted by RAD members in applying subsection 110(4) and requested that we put an end to this uncertainty and to the conflicting results that are likely to result from it.\n\nWith respect, I am not persuaded by this argument. It should be noted that Wilson is an “unusual” case, to use the expression employed by Justice Stratas, in that the question as to whether the Canada Labour Code, R.S.C. 1985, c. L-2 permits dismissals on a without cause basis has been one of “persistent” discord, to the extent that the answer to this question has largely depended on the identity of the adjudicator. Furthermore, adjudicators are not bound by the decisions of their colleagues and operate independently rather than within an institution such as an administrative tribunal, which decidedly does not favour the emergence of a consensus or a consistent interpretation.", - "current_to": "2016-03-29", + "text": "The “pragmatic and functional” approach is employed to determine the proper standard of review in any given case: see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at pp. 1088-90; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 592; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 28-53; Pushpanathan, supra, at para. 27; and Baker, supra, at para. 52. This approach takes into consideration factors such as the expertise of the tribunal, the nature of the decision being made, the language of the provision and the surrounding legislation, and the intention of Parliament. It recognizes that standards of review are appropriately seen as a spectrum, ranging from patent unreasonableness at the more deferential end of the spectrum, through reasonableness simpliciter, to correctness at the more exacting end of the spectrum: see Pezim, at pp. 589-90; Southam, at paras. 54-56; Pushpanathan, at para. 27; and Baker, at para. 55.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-14", + "id": "scc-1940-15", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 26", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 22", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In this instance, we are not confronted with a persistent discord that has existed for many years. The RAD was established in December 2012, and only began issuing decisions in 2013. There is therefore no urgent need to intervene, especially since the principles that will emerge from the jurisprudence of this Court and the Federal Court will necessarily provide a framework within which the RAD will be able to interpret subsection 110(4) of the IRPA. Thus, there is no need to depart from the general principle that an administrative tribunal is owed deference when it interprets its enabling statute; the early, tentative steps of the RAD and its differences of opinion as to the interpretation of certain statutory provisions do not affect the rule of law and are merely the inevitable consequence of choosing to entrust a specialized tribunal with the task of adjudicating disputes arising from the implementation of a new scheme.", - "current_to": "2016-03-29", + "text": "The appropriate standard of review in this case therefore must be determined by examining the relevant factors. First, the nature of the question under review favours a correctness standard. Like Pushpanathan, supra, and Baker, supra, this appeal involves a serious question of general importance certified pursuant to s. 83(1) of the Act. The jurisdiction of the I.A.D. and the mechanisms through which a decision of the I.A.D. can be appealed are established primarily by the following provisions of the Act: 69.4 . . . (2) [Sole and exclusive jurisdiction] The Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class. 82.1 (1) [Judicial review by Federal Court] An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court — Trial Division. 83. (1) [Certification necessary to appeal] A judgment of the Federal Court — Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-15", + "id": "scc-1940-16", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 27", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 23", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "That said, there was reason to believe that this Court owed no deference with regard to the decision made by an administrative decision-maker in the context of the IRPA, where the certified question on the basis of which the Federal Court decision was being appealed raised an issue of statutory interpretation. After all, the Federal Court may only certify serious questions of general importance that transcend the interests of the parties: IRPA, s. 79. Is this not precisely the type of question that requires a definitive interpretation and on which the Court of Appeal should rightly intervene to put a stop to inconsistencies that may develop within an administrative body? At least, this is what was suggested in decisions such as Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193. In that last matter, Justice Bastarache (writing for the majority) states at paragraph 43: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice.", - "current_to": "2016-03-29", + "text": "The resolution of a certified question will generally be of considerable precedential value. The legislative scheme recognizes this fact by providing that questions of general importance, i.e. those that will be applicable to numerous future cases, may be reviewed by the Federal Court of Appeal and, with leave, by this Court. The Act thus evinces a particular concern that questions of general importance be appropriately resolved. For this reason, Bastarache J. concluded in Pushpanathan, supra, that “s. 83(1) would be incoherent if the standard of review were anything other than correctness” (para. 43). However, in Baker, supra, a decision by the Minister under s. 114(2) of the Act was reviewed by L’Heureux-Dubé J. on the intermediate standard of reasonableness simpliciter, even though a question had been certified in that case. In my opinion, the presence of s. 83(1) is not determinative of the standard of review on its own. As this Court stated in Southam, supra, at paras. 36-37, the precedential value of a case is only one factor relevant to the determination of the appropriate standard of review. While the review of an issue of “general importance” weighs in favour of a correctness standard, other factors relevant to the pragmatic and functional approach must still be considered. Indeed, both Bastarache J. in Pushpanathan and L’Heureux-Dubé J. in Baker went on to examine a number of additional factors.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-16", + "id": "scc-1940-17", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 27", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 24", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board that are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal – and inferentially the Federal Court, Trial Division – is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no precedential value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law. Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases.", - "current_to": "2016-03-29", + "text": "In this case, the relevant additional factors also favour the correctness standard. The I.A.D. enjoys no relative expertise in the matter of law which is the object of the judicial review. While in Pushpanathan the matter under review was a human rights issue, an area of law in which deference is usually not given, the issue here is one of jurisdiction, a similar area where little deference is shown. Administrative bodies generally must be correct in determining the scope of their delegated mandate, given that they are entirely the creatures of statute. As Bastarache J. stated in Pushpanathan, at para. 28, “it is still appropriate and helpful to speak of ‘jurisdictional questions’ which must be answered correctly by the tribunal in order to be acting intra vires”. While the I.A.D. has considerable expertise in determining the weight to be given to the factors it considers when exercising the discretionary jurisdiction conferred by s. 70(1)(b) of the Act, the scope of this discretionary jurisdiction itself is a legal issue ultimately to be supervised by the courts. The legal nature of the issue is particularly evident in cases like the one before us, where the Minister is arguing that the I.A.D. has usurped her jurisdiction. The factor of expertise weighed in the opposite direction in Baker, because the Minister “has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply” (para. 59). The issue under review in Baker did not involve a jurisdictional issue like the one presently before this Court, and therefore a more deferential standard of review was appropriate.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-17", + "id": "scc-1940-18", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 28–30", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 25–26", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Yet the Supreme Court decided otherwise. In a recent decision, the highest court concluded that the presence of a certified question was not determinative and that the applicable standard of review for such questions is reasonableness: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44, [2015] S.C.J. No. 61. In order to reach such a conclusion, the Court essentially relied on the fact that it is the judgment itself that is ultimately the subject of an appeal, and not merely the certified question.\n\nFor all of these reasons, I therefore conclude that the judge correctly identified the standard of review to be applied to the application for judicial review that was before her. In other words, the RAD’s interpretation of subsection 110(4) of the IRPA was subject to review on the reasonableness standard, in accordance with the presumption that an administrative body’s interpretation of its home statute is owed deference by a reviewing court.\n\nI would hasten to add, as the judge did, that the present appeal does not turn on the role of the RAD and on the standard of review it should apply when ruling on decisions issued by the RPD, but solely on the factors the RAD must consider when assessing the admissibility of evidence that was not presented before the RPD. The standard to be applied by the RAD when reviewing a decision of the RPD on the merits is dealt with in another ruling of this Court in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93.", - "current_to": "2016-03-29", + "text": "In addition, Parliament has not enacted a strong privative clause for decisions of the I.A.D. (s. 69.4(2)). As Bastarache J. stated in Pushpanathan (at para. 49), in relation to the similarly worded privative clause for the C.R.D.D. (s. 67(1)), “read in the light of s. 83(1), it appears quite clear that the privative clause, such as it is, is superseded with respect to questions of ‘general importance’”. In my opinion, this is also the case for the privative clause contained in s. 69.4(2).\n\nFinally, appeals under s. 70(1)(b) do not engage the I.A.D. in a polycentric balancing of competing interests, but instead require the resolution of an issue in which an individual’s rights are at stake. The I.A.D. is not involved in a managing or supervisory function, but is adjudicating the rights of individuals vis-à-vis the state. This factor also weighs in favour of a less deferential standard of review. For all of these reasons, I conclude that a correctness standard should be applied in reviewing the decision of the I.A.D. in this case. However, it may well be that a more deferential standard would apply to decisions of the I.A.D. in other contexts, particularly if the issue under review were to fall squarely within the specialized expertise of the board. B. Statutory Interpretation", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-18", + "id": "scc-1940-19", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 31–32", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 27", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted above, the original version of the IRPA had anticipated the creation of the RAD, tasked with hearing appeals of certain RPD decisions. However, the relevant provisions were never implemented, and it was ultimately not until the enactment of the BRRA, on June 29, 2010, that the unproclaimed provisions (after a few minor amendments) creating the RAD would be implemented. Those provisions came into force on December 15, 2012 (Order Fixing December 15, 2012 as the Day on which Certain Sections of the Act Come into Force, S.I./2012-94, (2012) C. Gaz. II, 2980-2981; IRPA, s. 275).\n\nThe version ultimately adopted by Parliament differs in certain respects from the original 2001 document. More specifically, subsection 110(3) allows the Minister and the person who is the subject of the appeal to present not only written submissions, as was the case in the original version, but documentary evidence as well. It was precisely in the wake of this amendment that subsection 110(4) was introduced, which restricts evidence that may be presented by the person who is the subject of the appeal to “only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.”", - "current_to": "2016-03-29", + "text": "The resolution of this appeal turns on the interpretation given to the words of s. 70(1)(b). What does the phrase “having regard to all the circumstances of the case” mean? Did Parliament intend it to be broad enough to allow the I.A.D. to consider potential foreign hardship when deciding whether to quash or stay a removal order made against a permanent resident? This Court has stated on numerous occasions that the preferred approach to statutory interpretation is that set out by E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See also P.‑A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 287-94, and R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 131. The modern approach to statutory interpretation has been relied on by this Court in many areas, including the administrative law context. See, for example: Estey J. in Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at p. 578 (taxation); Dickson C.J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134 (administrative); Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 (employment); and McLachlin C.J. in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33 (criminal).", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-19", + "id": "scc-1940-20", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 33", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 28–29", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The wording of this provision bears a striking resemblance to that in paragraph 113(a), which governs the admissibility of new evidence in PRRA applications. A comparison of both texts allows for a better visualization of this resemblance: Evidence that may be presented Éléments de preuve admissibles 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 110. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Consideration of application Examen de la demande 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;", - "current_to": "2016-03-29", + "text": "While the interpretive factors enumerated by Driedger need not be applied in a formulaic fashion, they provide a useful framework through which to approach this appeal, given that the sole issue is one of statutory interpretation. However, I note that these interpretive factors are closely related and interdependent. They therefore need not be canvassed separately in every case. 1. Grammatical and Ordinary Sense\n\nAn ordinary reading of “all the circumstances of the case” leads to a broad interpretation of s. 70(1)(b). The first consideration is that these words appear in a provision establishing a discretionary or equitable jurisdiction. The words do not provide detailed guidelines as to how this discretionary jurisdiction is to be exercised, but instead leave the scope of the discretion open-ended.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-20", + "id": "scc-1940-21", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 34–35", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 30", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.\n\nThese conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal “may present only” (« ne peut présenter ») evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD’s record (s. 110(3)) and must for that reason be narrowly interpreted. Indeed, the judge seems to agree with this approach, insofar as she states that the respondent “was required to establish that he could not have reasonably been expected to provide the newly submitted documents at his RPD hearing” (para. 47). If she ultimately sides with him, it is because his request to file this new evidence fell squarely, in her view, within the scope of subsection 110(4), “and it met its explicit criteria” (para. 62).", - "current_to": "2016-03-29", + "text": "The second factor favouring a broad reading of s. 70(1)(b) is the grammatical sense of the phrase “all the circumstances of the case”. The word “all” is defined by the Concise Oxford Dictionary (8th ed. 1990), at p. 29, as “entire number of” or “greatest possible”. In this context, it would therefore mean considering the greatest possible number of factors relevant to the removal of a permanent resident from Canada. It is evident that one such factor is the conditions an individual would face upon removal. This is a natural consideration, because it is difficult to decide if it would be equitable to remove an individual from Canada without engaging in a comparative analysis of the conditions the individual would face if allowed to remain in the country and the conditions he or she would face if removed to a foreign state. For instance, an individual with two relatives in Canada but no relatives in the likely country of removal is in a different position from an individual with two relatives in Canada but an extensive family network in the likely country of removal. Similarly, an individual whose likely country of removal is at peace is in a different situation from an individual whose likely country of removal is in the midst of a civil war.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-21", + "id": "scc-1940-22", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 36–37", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 31", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The respondent and intervener relied on Elezi v. Canada (Minister of Citizenship and Immigration), 2007 FC 240, [2008] 1 F.C.R. 365 [Elezi] and, to a lesser extent, on Sanchez v. Canada (Minister of Citizenship and Immigration), 2009 FC 101, [2009] F.C.J No. 101, to argue that the RAD may take into account the probative value and credibility of evidence in order to counteract the requirements of subsection 110(4). With respect, I am unable to agree with this interpretation.\n\nI would first note that Elezi was issued nine months before the Court of Appeal’s ruling in Raza, and is therefore no longer authoritative insofar as it departs from this later decision. In addition, in Elezi, the PRRA officer’s decision not to admit some of the evidence was deemed to be unreasonable either because the evidence arose after the RPD’s decision, or because the applicant could not reasonably have been expected to present that evidence to the RPD in the circumstances. As a result, the assertion that one cannot reject credible evidence on the sole ground that it is “technically inadmissible” must be considered purely as an obiter.", - "current_to": "2016-03-29", + "text": "That this is the natural way to read “all the circumstances of the case” is supported by Krishnapillai v. Canada (Minister of Citizenship and Immigration), [1997] I.A.D.D. No. 636 (QL), where the I.A.D. stated, at paras. 37-38: The statutory duty of the Appeal Division is to consider all of the circumstances of the case of a permanent resident. This is a mandate to consider the individual in the entirety of his or her context. The connections of that individual to Canada, and the hardship that individual would experience upon removal can not be fully appreciated by assessing the individual solely in terms of the connections that individual has to Canada and people living in Canada. To do so would be to abstract that individual from the connections which also link that individual to his or her country of origin, and which connections form part of the reality of every immigrant. The degree to which a permanent resident maintains a connection with his or her country of origin varies with the circumstances of the individual, and it is the extent of that connection which, quite properly, forms the basis of inquiry in literally every removal appeal before this Division.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-22", + "id": "scc-1940-23", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 38", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 32–34", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The true crux of the issue here consists in determining whether the implied conditions of admissibility identified in the context of paragraph 113(a) by Justice Sharlow in Raza are also applicable to subsection 110(4). Because it goes to the heart of the submissions filed by counsel for both parties and the intervener, it is important to reproduce the following relevant excerpt from that decision: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or (c) contradicting a finding of fact made by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4.", - "current_to": "2016-03-29", + "text": "In addition, the inclusive nature of the word “all” suggests that realistic possibilities are just as relevant as certainties in making this discretionary decision. For instance, the likelihood that an individual will re-offend is an uncertain factor, but one that is commonly considered by the I.A.D. pursuant to s. 70(1)(b) when an individual is being removed as a result of a criminal conviction, as is the case in Al Sagban. This indicates that the I.A.D. should also be able to consider conditions in the likely country of removal, even when the ultimate country of removal is not known with absolute certainty at the time the s. 70(1)(b) appeal is heard.\n\nI therefore conclude that when the words of s. 70(1)(b) are read in their grammatical and ordinary sense, potential foreign hardship appears to be a relevant factor for the I.A.D. to consider. To conclude otherwise would be akin to reading this provision as entitling the I.A.D. to have regard to only some of the circumstances of the case. 2. Broader Context\n\nThe grammatical and ordinary sense of the words employed in s. 70(1)(b) is not determinative, however, as this Court has long rejected a literal approach to statutory interpretation. Instead, s. 70(1)(b) must be read in its entire context. This inquiry involves examining the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and Parliament’s intent both in enacting the Act as a whole, and in enacting the particular provision at issue.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-23", + "id": "scc-1940-24", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 38", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 35", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Materiality: If the evidence is material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a), within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.", - "current_to": "2016-03-29", + "text": "When read in this way, I conclude that the I.A.D. is entitled to consider potential foreign hardship under s. 70(1)(b), provided that a likely country of removal has been established on a balance of probabilities by the permanent resident facing removal. This is a case where the ordinary reading of the statute is in harmony with legislative intent and with the scheme and object of the Act. I will now explore each of the relevant contextual factors supporting this conclusion, beginning with the history of s. 70(1)(b). (a) History of Section 70(1)(b)", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-24", + "id": "scc-1940-25", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 39–40", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 36", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted above, the judge refused to transpose the implicit admissibility criteria identified by the Court of Appeal regarding paragraph 113(a) to the context of subsection 110(4). Relying on the fact that questions relating to credibility, relevance, newness and materiality arise implicitly from the purpose of paragraph 113(a), as Justice Sharlow herself declared, the judge was of the opinion that the different role and status of the RAD as compared to that of a PRRA officer called for a distinctive analysis. For the reasons that follow, I cannot subscribe to this view.\n\nIt must be assumed that Parliament’s decision to use near-identical wording did not happen by chance. Under a well-known rule of interpretation, it must be presumed that Parliament, when it uses the same wording as a provision that has already been interpreted by the courts, intends to rely on that interpretation: see Elmer A. Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983 at p. 125.", - "current_to": "2016-03-29", + "text": "Individuals facing removal from Canada have long been able to appeal the removal order made against them. Citizenship and Immigration Canada reviewed the history of the appeal process in Building on a Strong Foundation for the 21st Century: New Directions for Immigration and Refugee Policy and Legislation (1998), at p. 52: Appeals were made directly to the Minister responsible for immigration until 1956, at which time an administrative agency, still subordinate to the Minister, was established. A combination of factors, including dissatisfaction with an appeal process that lacked independence, led to the creation, in 1967, of the [reconstituted] Immigration Appeal Board. See Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at pp. 739-42, and N. Kelley and M. Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (1998), at pp. 368-69. The reconstituted I.A.B. was an administrative board independent of the Minister. Section 11 of the Immigration Appeal Board Act, S.C. 1966-67, c. 90, provided for appeals to the I.A.B. on any question of law or fact or mixed law and fact. Section 15 of this legislation conferred upon the I.A.B. the power to stay or quash a deportation order made against a permanent resident on the basis of “all the circumstances of the case”. As Kelley and Trebilcock point out, at pp. 368-69, the creation of this new power significantly changed the division of powers between the Minister and the administrative regime: The most important innovation in the new act was an extension of IAB powers to include areas of equitable jurisdiction.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-25", + "id": "scc-1940-26", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 41", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 36–37", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "It is true that the French iteration of subsection 110(4) differs slightly from paragraph 113(a), insofar as it does not state “that the applicant could not reasonably have been expected…to have presented” (« qu’il n’était pas raisonnable … de s’attendre à ce qu’il les ait présentés »), but rather “that the person could not reasonably …have presented” (« qu’elle n’aurait pas normalement présentés »). I would agree with the judge that this distinction is not particularly telling, nor is it sufficient, in and of itself, to set aside past jurisprudence that has developed with regard to paragraph 113(a). In addition, no great inference may be drawn from the absence of the word “new” in the English version of subsection 110(4). Not only is the word “new” (« nouveau ») nowhere to be found in the French version of paragraph 113(a), but it is furthermore self-evident that evidence that arose after the rejection of the refugee protection claim will necessarily be new.", - "current_to": "2016-03-29", + "text": "This new power allowed the IAB to consider humanitarian and compassionate arguments if the appellant was about to be deported under the strict terms of the Immigration Act. [Progressive Conservative M.P.] Richard Bell opposed placing such equitable powers in the hands of an administrative tribunal, preferring that the political arm of government continue to exercise it. However, as he himself acknowledged, his view was not one widely shared by his colleagues: ‘without question, sir, the majority opinion is against me.’ However, this new power remained subject to the discretion of the Minister and the Solicitor General, who were empowered under s. 21 of this legislation (ss. 81 through 82 of the present Act) to pre-empt an I.A.B. decision by certifying their opinion, based on security or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. As an aside, I note that the right of appeal may also now be lost if the Minister is of the opinion that an individual constitutes a danger to the public in Canada: s. 70(5) of the present Act.\n\nThe Immigration Appeal Board Act was repealed in 1977 by the Immigration Act, 1976, S.C. 1976-77, c. 52. Section 72 of this new legislation consolidated the former ss. 11 and 15 into one section setting out two separate grounds of appeal. In Chiarelli, supra, Sopinka J. stated, for the Court, at p. 741, that these reforms: . . . did not change the nature of the decision that could be made by the Board “having regard to all the circumstances of the case”. That decision remained, as it had been under the 1967 Act, an exercise of discretion based on compassionate grounds.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-26", + "id": "scc-1940-27", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 42", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 38", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The fact that the RAD is a quasi-judicial administrative tribunal, as opposed to the PRRA officer, who is an employee of the Minister, acting within his or her employer’s discretion, must obviously be taken into consideration. The same applies to the fact that the RAD has an appellate function and has the authority to set aside the RPD’s decision and substitute that which should have been made, while the PRRA officer must show deference and does not sit in appeal of the RPD’s decision and his or her only mission is to assess any new pre-removal risk. These distinctions are not determinative of the admissibility of new evidence, however, and I note that the trial judge did not specify how the distinctive role and status of the RAD and the PRRA officer should affect the criteria for admitting evidence or how it would allow for the negation of the presumption to which I referred above.", - "current_to": "2016-03-29", + "text": "The appeals component of the I.A.B. later became the I.A.D., and s. 72 was later renumbered s. 70, but its wording has remained the same. What did change in 1977, however, was that the concept of domicile was removed from the Act. Prior to the 1977 reforms, permanent residents who had lived in Canada for five years acquired Canadian domicile and could not be removed from the country, absent exceptional circumstances: see Kelley and Trebilcock, supra, at p. 430. When questioned on the vulnerability of long-term permanent residents under the new approach, the Honourable Bud Cullen, Minister of Manpower and Immigration, responded that the new Act “permits removal of permanent residents only for very serious reasons and leaves ameliorating or compassionate factors such as length of residence in Canada to the discretion of the Immigration Appeal Board to which permanent residents have a right to appeal” (House of Commons Debates, July 22, 1977, at p. 7928). I note that no mention was made of relegating to the Minister the consideration of ameliorating or compassionate factors that involve foreign considerations.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-27", + "id": "scc-1940-28", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 43", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 39", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In fact, the criteria used in Raza are consistent with the tests generally adopted by courts and administrative bodies, and are essentially designed to preserve the integrity of the judicial process: see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 at para 10, [2000] 1 S.C.R. 44. Although they were established by the Supreme Court in the context of a criminal proceeding (see Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775, 106 D.L.R. (3d) 212 [Palmer]), the criteria of newness, relevance, credibility and materiality were subsequently applied in civil matters (J.T.I MacDonald Corp. v. Canada (Attorney General), 2004 CanLII 30110 at para. 3, [2004] J.Q. no 9409 (C.A.Q.), in disciplinary law (Morin v. Regional Administration Unit #3 (P.E.I.), 2002 PESCAD 9 at para. 140, 213 D.L.R. (4th) 17 (P.E.I.C.A.), in aboriginal law (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 22 at para. 20, [2002] F.C.J No. 146) and in a number of other areas (see Donald J.M. Brown, Civil Appeals, Carswell, Toronto, 2015, pp. 10-16 to 10-18).", - "current_to": "2016-03-29", + "text": "Indeed, this Court has long approved of a broad approach to s. 70(1)(b) (or its predecessor legislation). Martland J. stated in Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, at p. 590 (dissenting, but not on this point) that, “[t]he intention of the Act was to enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made.” In the same case, Abbott J. stated, for the majority, at p. 581: This somewhat unusual section [s. 15, the provisions of which are now contained in ss. 70(1)(b) and 70(3)(b)] gives the Board broad discretionary powers to allow a person to remain in Canada who is inadmissible under the Immigration Act. Before the section was enacted, such power was vested solely in the executive branch of Government. Whether the discretion to be exercised by the Board under s. 15 be described as equitable, administrative or political, it is not in the strict sense a judicial discretion, but it would appear it should be exercised essentially upon humanitarian grounds. This view was confirmed by Sopinka J., for the Court, in Chiarelli, supra, at p. 737, where he stated that s. 70(1)(b) “allows for clemency from deportation on compassionate grounds”. In the I.R.B. publication, Removal Order Appeals (1999), at p. 9-2, it is stated that s. 70(1)(b) “contemplates the realization of a valid social objective, namely, relief from the hardship that may be caused by the pure operation of the law relating to removal”. I agree.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-28", + "id": "scc-1940-29", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 44", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 40", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Indeed, in my view it would be difficult to argue that the criteria set out by Justice Sharlow in Raza do not flow just as implicitly from subsection 110(4) as from paragraph 113(a). It is difficult to see, in particular, how the RAD could admit documentary evidence that was not credible. Indeed, paragraph 171(a.3) expressly provides that the RAD “may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.” It is true that paragraph 110(6)(a) also introduces the notion of credibility for the purposes of determining whether a hearing should be held. In that regard, however, it is not the credibility of the evidence itself that must be weighed, but whether otherwise credible evidence “raises a serious issue” with respect to the general credibility of the person who is the subject of the appeal. In other words, the fact that new evidence is intrinsically credible will not be sufficient to warrant holding a hearing before the RAD: this evidence would still be required to justify a reassessment of the overall credibility of the applicant and his or her narrative.", - "current_to": "2016-03-29", + "text": "Employing such a broad approach to s. 70(1)(b), the I.A.D. itself has long considered foreign hardship to be an appropriate factor to take into account when dealing with appeals brought under this section. In Ribic, supra, at pp. 4-5, the I.A.B. summarized the relevant factors to be considered under its discretionary jurisdiction pursuant to what is now s. 70(1)(b) of the Act: In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical. [Emphasis added.] This list is illustrative, and not exhaustive. The weight to be accorded to any particular factor will vary according to the particular circumstances of a case. While the majority of these factors look to domestic considerations, the final factor includes consideration of potential foreign hardship.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-29", + "id": "scc-1940-30", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 45–47", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 41", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The same would apply to relevance. This is a basic condition for the admissibility of any piece of evidence, and it would be difficult to imagine the introduction of new evidence being somehow exempt from this criterion. Indeed, Rules 3(3)(g)(iii) and 5(2)(d)(ii) of the Refugee Appeal Division Rules, S.O.R./2012-257 implicitly allude to this by providing that both the appellant’s memorandum and memorandum in reply must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant (« la façon dont ils sont liés à l’appelant »).\n\nThe newness criterion may appear somewhat redundant and does not really add to the explicit requirements of subsection 110(4).\n\nAs for the fourth implicit criterion identified by this Court in Raza, namely, the materiality of the evidence, there may be a need for some adaptations to be made. In the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk. The RAD, on the other hand, has a much broader mandate and may intervene to correct any error of fact, of law, or of mixed fact and law. As a result, it may be that although the new evidence is not determinative in and of itself, it may have an impact on the RAD’s overall assessment of the RPD’s decision.", - "current_to": "2016-03-29", + "text": "The “Ribic factors” were applied by the I.A.D. for at least 15 years. In fact, the I.A.B. considered potential foreign hardship under s. 70(1)(b) as early as 1978: Moore v. Minister of Employment and Immigration, No. 78-3016, December 6, 1978. Prior to these appeals, the only other case in which the I.A.D. refused to consider potential foreign hardship when reviewing a removal order against a non-refugee permanent resident under its discretionary jurisdiction was El Tassi v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. No. 993 (QL). As in these appeals, this was the result of the panel interpreting Hoang, supra, as preventing them from doing so. The types of foreign hardship factors considered by the I.A.D. since the 1977 reforms have included language ability, family connections, availability of necessary medical care, and risk of physical harm. (b) The Scheme of the Act", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-30", + "id": "scc-1940-31", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 48–49", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 42–43", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Under subsection 110(6) of the IRPA, a RAD hearing may be held, subject to three conditions associated with the existence of new documentary evidence. The principle whereby the RAD proceeds without holding a hearing, as set out in subsection 110(3), is subject to an exception only where the documentary evidence “(a) […] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) […] is central to the decision with respect to the refugee protection claim; and (c) […] if accepted, would justify allowing or rejecting the refugee protection claim.” These three conditions are unquestionably related to the materiality of the new documentary evidence that the RAD could be required to consider. If such is the case, as one would have reason to believe, it would be redundant to require materiality of evidence for it to be admissible as new evidence, to then subject the conduct of a hearing to the same criterion.\n\nSubject to this necessary adaptation, it is my view that the implicit criteria identified in Raza are also applicable in the context of subsection 110(4). For the reasons set out above, I am not satisfied that the differing roles of the PRRA and the RAD, and the separate status of persons who perform these functions, are sufficient to set aside the presumption that Parliament intended to defer to the courts’ interpretation of a legislative text when it chose to repeat the same essential points in another provision. Not only are the requirements set out in Raza self-evident and widely applied by the courts in a range of legal contexts, but there are very good reasons why Parliament would favour a restrictive approach to the admissibility of new evidence on appeal.", - "current_to": "2016-03-29", + "text": "The arguments raised by both sides in this appeal primarily concern the proper role of s. 70(1)(b) appeals within the overall scheme of the Act. In addition, most of the concerns expressed by the Federal Court of Appeal with regard to allowing the I.A.D. to consider potential foreign hardship involved the appropriate place for foreign hardship to be considered within the scheme of the Act. The Minister argues that the I.A.D. cannot consider potential foreign hardship under s. 70(1)(b) because the Minister has not yet made her decision as to the country of removal under s. 52 at the time of the s. 70(1)(b) hearing. To conclude otherwise would allow the I.A.D. to interfere with the jurisdiction of the Minister to make that decision. The appellant, on the other hand, argues that a likely country of removal is almost always known at the time of the s. 70(1)(b) appeal (at least for permanent residents who are not refugees), and therefore can be considered at that time. Furthermore, the appellant submits, there is no other logical place in the Act under which potential foreign hardship can be considered if it is not considered under s. 70(1)(b).\n\nI will therefore examine the scheme of the Act to explain, in part, why I have concluded that the appellant’s position is the correct one. The relevant provisions are those concerned with the way in which permanent residents can be lawfully removed from Canada, and the various avenues of redress available to permanent residents to contest a removal order. (i) General Provisions with Respect to Removal of Permanent Residents", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-31", + "id": "scc-1940-32", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 50", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 44–45", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "As the Supreme Court noted in Palmer, a well-established judicial principle exists whereby the evidence and issues must be introduced exhaustively and dealt with at trial in criminal matters or at first instance in civil matters. As a case progresses, the issues in the matter must normally be further narrowed; the effect of introducing new evidence would be rather to expand the scope of the debate. This is what the RAD aptly highlighted at paragraph 20 of its reasons: On this topic, it should be noted that the fact that evidence corroborates facts, contradicts RPD findings or clarifies evidence before the RPD does not make it “new evidence” within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD. In my opinion, this is exactly what subsection 110(4) of the Act seeks to prohibit. [Footnotes omitted]", - "current_to": "2016-03-29", + "text": "The scheme of the Act with regard to the removal of permanent residents is relatively straightforward, although there are some complexities in more unusual circumstances. Once lawfully admitted to Canada, permanent residents are removable only if they are a person described in s. 27(1) of the Act. Grounds for removal set out in s. 27(1) include obtaining landing by virtue of fraud or misrepresentation of a material fact (s. 27(1)(e)), the applicable ground in this case, and conviction of an offence for which a term of more than six months’ imprisonment has been imposed, or where a term of imprisonment of five years or more may be imposed (s. 27(1)(d)), the applicable ground in Al Sagban.\n\nPermanent residents have the right to appeal a removal order to the I.A.D. pursuant to s. 70(1), on either legal grounds (s. 70(1)(a)) or discretionary grounds (s. 70(1)(b)), unless they are designated as a “danger to the public” under s. 70(5) or as a security risk under s. 81. It is important to note that when such an appeal is brought, the execution of the removal order is automatically stayed by s. 49 of the Act until the appeal has been disposed of by the I.A.D. and any judicial review proceedings have come to an end. As I will discuss below, this is not the situation when an individual is seeking the judicial review of a decision by the Minister. In such instances, a stay of the removal order is at the discretion of the Federal Court.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-32", + "id": "scc-1940-33", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 51–52", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 46", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In this regard, it is significant to note that Parliament’s departure from the principle of a paper-based appeal, held in the original version of the IRPA adopted in 2002, was limited. At the risk of repeating myself, the basic rule is that the RAD “must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division […]” (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6). Where the RAD finds that all of the evidence should be heard again in order to make an informed decision, it must refer the case back to the RPD (ss. 111(2)). This legislative framework reflects Parliament’s clear wish to narrowly define the introduction of any new evidence.\n\nThe judge acknowledged that an appeal filed with the RAD is “mostly intended as a ‘paper-based’ appeal” (para. 52). However, it is her opinion that a strict interpretation of subsection 110(4) would limit an applicant’s access to a “full fact-based appeal,” which would go against the wishes expressed by Jason Kenney, former Minister of Citizenship and Immigration, in a statement made in the House on March 6, 2012 (House of Commons Debates, 41st Parl., 1st Sess., No. 90 (March 6, 2012) at p. 5874).", - "current_to": "2016-03-29", + "text": "Parliament has structured the I.A.D. to provide robust procedural guarantees to individuals who come before it and to provide a significant degree of administrative flexibility to I.A.D. board members and staff. The I.A.D. is a court of record (s. 69.4(1)) with broad powers to summons and examine witnesses, order the production of documents, and enforce its orders (s. 69.4(3)). A removal order appeal is essentially a hearing de novo, as evidence can be received that was not available at the time the removal order was made. The I.A.D. has liberal rules of evidence, and may “receive such additional evidence as it may consider credible or trustworthy and necessary for dealing with the subject-matter before it” (s. 69.4(3)(c)). Written reasons must be provided for the disposition of an appeal under ss. 70 or 71 when such reasons are requested by either of the parties to the appeal (s. 69.4(5)). As with the statutory stay, Parliament has not provided similar procedural guarantees for decisions by the Minister.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-33", + "id": "scc-1940-34", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 53", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 47–48", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "It is true that in tabling the bill, the Minister affirmed that the vast majority of applicants from non-designated countries would have, for the first time, a “fact-based appeal” before the RAD. This statement alone is insufficient to substantiate the theory that criteria explicitly set out at subsection 110(4) can be set aside. It is at best ambiguous, and could be simply construed as differentiating the appeal from the much narrower scope of a judicial review. In this regard, I support the argument of the appellant and his analysis of the circumstances in which the Minister made his statement.", - "current_to": "2016-03-29", + "text": "Furthermore, the remedial powers of the I.A.D. are very flexible. Pursuant to s. 73(1) of the Act, the I.A.D. can dispose of an appeal made pursuant to s. 70 in three ways: by allowing it; by dismissing it; or, if exercising its equitable jurisdiction under ss. 70(1)(b) or 70(3)(b), by directing that execution of the order be stayed. When a removal order is quashed, the I.A.D. has the power to make any other removal order or conditional removal order that should have been made (s. 74(1)). When a removal order is stayed, the I.A.D. may impose any terms and conditions it deems appropriate, and review the case from time to time as it considers necessary (s. 74(2)). Stays may be cancelled or amended by the I.A.D. at any time (s. 74(3)). When a stay is cancelled, the appeal must be either dismissed or allowed, although the I.A.D. retains its powers under s. 74(1) to substitute a different removal order.\n\nThe I.A.D. can also reopen an appeal prior to execution of the removal order and, if appropriate, exercise its discretion in another way. As a result, this Court has stated that the I.A.D.’s discretionary jurisdiction is ongoing: Grillas, supra, at p. 582, per Abbott J., and at p. 590, per Martland J. As Lorne Waldman states, in Immigration Law and Practice (loose-leaf ed.), at § 10.133.7: It is trite law that the Appeal Division has ongoing jurisdiction over the appellant up to and until the time that the removal order is executed. In such circumstances, there would appear to be no reason for concluding that the Appeal Division could [not] consider subsequently whether or not to reopen an appeal to consider issues related to the impact of removal to a specific country on the appellant.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-34", + "id": "scc-1940-35", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 54", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 49–50", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The judge also based the decision on the reduced timeframes within which claimants must submit their documents to support the flexible interpretation of the admissibility criteria she considered in her decision. The amendments made to the IRPA and to the Immigration and Refugee Protection Regulations, S.O.R./2002-227 [IRPR] do put a great deal of pressure on refugee protection claimants. The referral of a claim to the RPD is done within the three days following the filing of the claim (IRPA, subsection 100(1)), and the hearing must take place within 60 days of the referral (IRPR, paragraph 159.9(1)(b)), and even within 30 or 45 days for nationals from a designated country. Furthermore, according to paragraph 34(3) of the Refugee Protection Division Rules, S.O.R./2012-256 [RPD Rules], refugee protection claimants must file their supporting documentation before the RPD 10 days before the hearing. However, these considerations do not suffice to set aside the clear legislative intention to not authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.", - "current_to": "2016-03-29", + "text": "It is within this general scheme that the alternative suggestions made by the Minister as to where foreign hardship should be considered must be evaluated. Essentially, the Minister submits that the scheme of the Act favours considering foreign hardship by seeking judicial review of the Minister’s decision as to the country of removal, made under s. 52 of the Act, or by seeking a Minister’s permit under s. 114(2) of the Act to exempt the individual from removal due to foreign hardship concerns. In either of these ways, foreign hardship can be considered after the Minister has made her decision regarding the country of removal.\n\nIn my opinion, these alternative avenues of redress are not the ideal way for foreign hardship concerns to be taken into account. They need be resorted to only in cases where the I.A.D. cannot consider potential foreign hardship — either because a likely country of removal has not been established, because the I.A.D. has lost jurisdiction (i.e. pursuant to ss. 70(5) or 81 of the Act), or because the country of removal changed after the s. 70(1)(b) appeal hearing. Furthermore, I do not believe that allowing the I.A.D. to take foreign hardship into account under s. 70(1)(b) interferes with the Minister’s jurisdiction under s. 52, with regard to the selection of the country of removal. I will now explain why I have reached these conclusions. (ii) Section 52 of the Act", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-35", + "id": "scc-1940-36", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 55", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 51–52", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Inversely, the desire to counter the abuses that could occur under the regime applicable before the BRRA and the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 came into force should not be invoked to restrict new evidence that those finding themselves with valid reason before the RAD should seek to file. In his factum, the Minister stated that the BRRA showed some degree of a willingness to enhance the admissibility criteria for new evidence at the RAD. Undoubtedly, Parliament intended to ensure the integrity of the immigration system by more effectively countering individuals who try to abuse it. To do so, Parliament took a certain number of measures, such as the creation of the RAD, and set out clear rules of evidence and procedure to ensure its appropriate functioning. These rules must be respected, and it must be presumed that the explicit choices that were made match the objective pursued. It is not the responsibility of the courts to rewrite such provisions when they are intelligible and unequivocal.", - "current_to": "2016-03-29", + "text": "Section 52 of the Act controls the country of removal, which can be selected by the individual being removed, subject to the Minister’s approval, or by the Minister, which is the usual occurrence. In practice, the Minister usually makes the s. 52 decision by having an enforcement officer book travel arrangements for the individual being removed. There is no other administrative procedure in place by which a s. 52 decision is made, or by which a s. 52 decision can be contested by the individual being removed, beyond seeking judicial review of the Minister’s decision. I note, however, that the judicial review of a s. 52 decision is very limited in scope: Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468 (T.D.).\n\nWhen a removal order is made, the traditional practice is that a decision regarding the country of removal is made by the Minister pursuant to s. 52 of the Act after the I.A.D. has dismissed an appeal. However, as was conceded by the Minister in oral argument, there is no statutory requirement that this be the case. The Minister can select the country of removal at any time after “an exclusion order or a deportation order is made” (s. 52(1)). The only legislative direction with regard to timing is contained in s. 48 of the Act, which instructs the Minister to execute a removal order “as soon as reasonably practicable” after it is made, or after any stays have been lifted. But s. 48 deals only with the timing of the execution of removal orders, not the selection of a country of removal. If the Minister is concerned about maintaining the ability to exercise her jurisdiction to decide the country of removal in every case, she is free to make the s. 52 decision prior to the I.A.D. hearing.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-36", + "id": "scc-1940-37", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 56", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 53", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Finally, the intervener stated that the RAD should take its inspiration from the values enshrined in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c. 11 [Charter] when it rules on the admissibility of new evidence. Based on paragraph 3(3)(d) of the IRPA, further to which the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Charter, as well as the decisions rendered by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola], counsel for the intervener claimed that the RAD had to go beyond the requirements set out in subsection 110(4) and was obligated to proceed with a proportionality analysis between the seriousness of the violation of the Charter right and the statutory objectives. The following is how counsel described the test they propose (in paragraph 34 of their factum): (a) If the evidence is capable of credibly proving relevant circumstances that arose after the RPD’s decision, then the evidence must be considered. (b) If the evidence is only capable of credibly proving relevant circumstances that arose prior to the RPD’s decision, then the RAD should consider if the appellant established either (i) that the evidence was not reasonably available or (ii) that she could not reasonably have been expected in the circumstances to have presented it, at the time of the RPD decision.", - "current_to": "2016-03-29", + "text": "In any event, there is no legal impediment to the Minister making a submission to the I.A.D. at the time of the appeal regarding the likely country of removal. The Minister is always a party to an appeal under s. 70(1)(b). The intervener I.R.B. points out that the Minister has made such submissions on many occasions in the past. In addition, the country of removal for a permanent resident who is not a refugee will rarely be one other than the individual’s country of nationality or citizenship. Counsel for the appellant and for the intervener I.R.B. argued that, when the appeal involves a non-refugee, approximately 90 percent of the time the country of removal is known at the time the s. 70(1)(b) appeal is heard. The Minister conceded in oral argument that the correct figure was “a very high percentage”. That this is the case is not surprising, given that the only country usually willing to take an individual being removed is the country that is legally obliged to take them — that of which the individual is a national or citizen: see Reed J.’s decision in Al Sagban v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 501 (T.D.), at p. 506.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-37", + "id": "scc-1940-38", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 56", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 54", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In this assessment, the RAD should recall that « in order for there to be a ‘full fact-based appeal’ before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur » [Singh v. Canada (MCI), 2014 FC 1022 at para. 55, per Gagné J.]. If the appellant is able to establish either condition, then the evidence must be admitted. (c) If the appellant is unable to satisfy either condition, then the RAD should consider whether the evidence raises a prima facie case of risk and, if admitted, could allow the RAD to come to a different conclusion on a central aspect of the claim than that of the RPD. If it does, then the RAD must conduct a proportionality exercise in which it balances the severity of the interference that exclusion would cause to the appellant’s Charter rights with the statutory objectives underlying s. 110(4).", - "current_to": "2016-03-29", + "text": "This explains why the option of voluntary departure under s. 52 will not be realistic for many individuals facing removal. Voluntary departure is dependent on an individual finding a suitable country willing to accept him or her. When an individual has criminal convictions, this will be particularly difficult. As Waldman points out, supra, at §10.133.4, “this remedy will, in most cases, be more apparent than real, because it will usually be extremely difficult for a person who has been ordered deported from Canada to gain admission to any country other than the country of his or her nationality”. I point this out for two reasons. First, to illustrate that voluntary departure will not usually be an option available to a permanent resident facing removal who has foreign hardship concerns. And second, to further confirm that the likely country of removal will usually be known at the time the s. 70(1)(b) appeal is heard.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-38", + "id": "scc-1940-39", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 57", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 55", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "With respect, I cannot agree with this argument. It is true that, in Doré, the Supreme Court stated that it was of the opinion that an administrative decision-maker must weigh the values set out in the Charter and the statutory objectives in the exercise of his or her discretionary power. In the context of a judicial review, the Court must determine whether the decision under review is the result of a proportionate balancing of the rights and values protected by the Charter, a process that bears some resemblance to the framework of analysis established in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 when the very validity of a legislative text is challenged. This approach is well summarized in the following excerpt from Doré, at paragraph 57: On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155) and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.", - "current_to": "2016-03-29", + "text": "I also do not believe that allowing the I.A.D. to take foreign hardship into account under s. 70(1)(b) interferes with the Minister’s jurisdiction to decide the country of removal. If the I.A.D. decides to quash or stay a removal order, it does not interfere with the Minister’s jurisdiction under s. 52, because there is no longer a removal order in place for which a s. 52 decision needs to be made. In other words, the Minister’s jurisdiction to decide the country of removal becomes inoperative when a removal order is quashed or stayed, as there is no longer anyone to remove. While the Act does not prevent the Minister from making the s. 52 decision prior to the hearing of the s. 70(1)(b) appeal, if the Minister decides to wait until after the hearing to make a decision under s. 52, she runs the risk of losing jurisdiction to make that decision because there will no longer be anyone to remove. In my opinion, this was the intended scheme of the Act. I therefore see no reason why s. 52 should prevent the I.A.D. from considering foreign hardship in the likely country of removal when hearing an appeal under s. 70(1)(b).", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-39", + "id": "scc-1940-40", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 58–59", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 56", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Based on this approach, counsel for the intervener claim that the values protected by section 7 of the Charter must enter into the interpretation and application of subsection 110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision. However, this thesis encounters at least two difficulties.\n\nFirst of all, it has not been established in this case that the values protected by section 7 of the Charter are affected by the RAD’s decision not to admit as new evidence the Diploma that the respondent wanted to adduce. The intervenor argued that excluding credible evidence could result in an appeal being dismissed and consequently in the removal of the foreign national “as soon as possible”, because the conditional removal order comes into force 15 days after notification that the claim is rejected (IRPA, s. 49(2)c)). However, in my view this does not seem sufficient to conclude that the decision not to admit new evidence on appeal necessarily affects the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.", - "current_to": "2016-03-29", + "text": "Before turning to the Minister’s arguments with respect to s. 114(2), I wish to add some brief comments regarding the correct procedure to be followed during a s. 70(1)(b) appeal. First, the onus is on a permanent resident facing removal to establish the likely country of removal, on a balance of probabilities. It is only in those cases where the Minister disagrees with an individual’s submissions as to the likely country of removal that the Minister would need to make submissions as to why some other country is the likely country of removal, or as to why a likely country of removal cannot yet be determined. This would be the case, for instance, where the Minister is involved in negotiations with a country other than an individual’s country of nationality or citizenship with regard to accepting that individual.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-40", + "id": "scc-1940-41", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 60", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 57", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "It is first noteworthy that the decision made by the RPD, and on appeal before the RAD, does not pertain to the respondent’s removal, but solely to whether he is genuinely a Convention refugee or a person in need of protection in accordance with sections 96 and 97 of the IRPA. I am prepared to recognize that the RAD’s decision to exclude evidence on the grounds that it does not meet the criteria in subsection 110(4) will have a significant impact if a foreign national tries to submit that same evidence to a PRRA Officer or to a Removal Officer. Nevertheless, the respondent in this case failed to establish his credibility; the RAD found that the RPD could reasonably conclude that the respondent’s credibility was seriously undermined, and that that conclusion would be valid even if the Diploma were admitted in evidence. For reasons set out below, I am of the opinion that that conclusion falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and consequently the respondent did not establish that his life, liberty or security would be in danger if he were returned to India.", - "current_to": "2016-03-29", + "text": "Second, in appeals under the I.A.D.’s discretionary jurisdiction, the onus has always been on the individual facing removal to establish why he or she should be allowed to remain in Canada. If the onus is not met, the default position is removal. Non-citizens do not have a right to enter or remain in Canada: Chiarelli, supra, at p. 733, per Sopinka J. See also Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 189, per Wilson J.; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 834, per La Forest J.; and Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1070. In general, immigration is a privilege not a right, although refugees are protected by the guarantees provided by the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, entered into force April 22, 1954, entered into force for Canada September 2, 1969 (the “1951 Geneva Convention”), and the Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967, entered into force in Canada June 4, 1969. As Martland J. stated for this Court in Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order “establishes that, in the absence of some special privilege existing, [an individual subject to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege”.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-41", + "id": "scc-1940-42", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 61", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 58", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Second, the intervenor did not convince me that the RAD’s decision not to admit new evidence would engage the principles of fundamental justice. It must be remembered that a foreign national claiming status as a refugee or a person in need of protection benefits from an extensive, multi-stage process that enables him to assert his claims before several levels of independent and impartial quasi-judicial tribunals and administrative decision-makers, and that he can apply for judicial review of those decisions to the Federal Court. While the right of appeal has not been recognized as a principle of fundamental justice (see Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para. 47, [2005] 2 S.C.R. 539; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at pp. 741-742, 90 D.L.R. (4th) 289), Parliament decided to enhance the former regime and to implement the provisions of the IRPA establishing the RAD. The legislator could have provided only for an appeal on the record without a hearing, but elected to open the door to the submission of new evidence and hearings in carefully limited circumstances. I fail to see how enhancing a system already broadly respectful of the international and constitutional obligations to which Parliament and the government are subject could jeopardize that same system, especially since the criteria used in respect of admissibility of new evidence are essentially similar to those normally used in judicial and quasi-judicial proceedings on appeal, in both civil and criminal matters. The constitutionality of subsection 110(4) of the IRPA has not been challenged in this case, so I will abstain from drawing any definitive conclusion in that regard.", - "current_to": "2016-03-29", + "text": "Finally, I note that the likely country of removal will often not be ascertainable for Convention refugees because s. 53 of the Act prohibits their removal “to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion”, unless the individual falls within particular enumerated classes and the Minister is of the opinion that the individual constitutes a danger to the public in Canada (s. 53(1)(a), (c) and (d)) or a danger to the security of Canada (s. 53(1)(b)). Section 53 implements Canada’s international commitment under Article 33 of the 1951 Geneva Convention to protect against refoulement, the principle of international law which requires that no state shall return a refugee to a country where his or her life or freedom may be endangered, except where a refugee is a danger to national security or a danger to the community in the host state. As a result, most Convention refugees cannot be removed to their country of nationality or citizenship, but often no other country will be obliged or willing to accept them. In such cases, there will be no likely country of removal at the time of the appeal and the I.A.D. cannot therefore consider foreign hardship.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-42", + "id": "scc-1940-43", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 61–62", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 59", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "That said, I have not been convinced that the exclusion of the Diploma by the RAD is contrary to the principles of fundamental justice, even assuming that the exclusion of that evidence affects the respondent’s right to life, liberty and security.\n\nHowever, there is more. A close reading of Doré shows that an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion: Doré, para. 55; Loyola, para. 35; R v. Clarke, 2014 SCC 28 at para. 16, [2014] 1 S.C.R. 612. When legislation or regulations are clear and unambiguous, it is not up to the courts to rewrite them on the pretext of ensuring conformity with Charter values (Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 262 at para. 107, [2015] 4 F.C.R. 162; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 at para. 67, [2014] 3 S.C.R. 431). Except under exceptional circumstances, the courts only have the authority to declare invalid legislation that is unconstitutional, and only if the issue is explicitly raised and the Attorney General has been notified. It is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land.", - "current_to": "2016-03-29", + "text": "In contrast, permanent residents who are not Convention refugees have no explicit statutory protection against removal to a state where they believe their life or freedom would be threatened (although they have Charter protections against return to certain conditions: see Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1). This illustrates that there is no need to have absolute consistency between how permanent residents who are not refugees are dealt with under the Act and how Convention refugees are dealt with. In fact, the Act treats citizens differently from permanent residents, who in turn are treated differently from Convention refugees, who are treated differently from individuals holding visas and from illegal residents. It is an important aspect of the statutory scheme that these different categories of individuals are treated differently, with appropriate adjustments to the varying rights and contexts of individuals in these groups. I need only point out that permanent residents have rights under both the Charter and the Act that other non-citizens do not, including mobility rights under s. 6(2) of the Charter and the right to sponsor individuals to come to Canada under s. 6(2) of the Act. (iii) Section 114(2) of the Act", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-43", + "id": "scc-1940-44", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 63", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 60", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "However, subsection 110(4) is not written in an ambiguous manner and does not grant any discretion to the RAD. As mentioned above (see paras. 34, 35 and 38 above), the admissibility of fresh evidence before the RAD is subject to strict criteria and neither the wording of the subsection nor the broader framework of the section it falls under could give the impression that Parliament intended to grant the RAD the discretion to disregard the conditions carefully set out therein. Moreover, this approach complies perfectly with this Court’s decision in Raza. The criteria set out in that decision regarding paragraph 113(a), which, moreover, are not necessarily cumulative, do not replace explicit legal conditions; rather they add to those conditions to the extent that they are “necessarily implied” from the purpose of the provision, to reiterate this Court’s words at paragraph 14 of Raza. Otherwise, this would mean ignoring the conditions set out at subsection 110(4) and then delving into a balancing exercise between Charter values and the objectives sought by Parliament. In the absence of a direct challenge to this legislation, it should be given effect and the RAD has no choice but to comply with its requirements.", - "current_to": "2016-03-29", + "text": "This brings us to the Minister’s argument that foreign hardship is more appropriately considered under an application for a Minister’s permit under s. 114(2), which would be made after the s. 52 decision as to the country of removal has been made. I disagree with this position, at least in those cases where a likely country of removal can be established before the I.A.D. For ease of reference, s. 114(2) is repeated here: 114. . . . (2) [Exemption from regulations] The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. First, I note that this provision is generally used by the Minister to facilitate entry to Canada, not to prevent removal from Canada. As L’Heureux-Dubé J. stated for a majority of this Court in Baker, supra, at para. 1: Regulations made pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, empower the respondent Minister to facilitate the admission to Canada of a person where the Minister is satisfied, owing to humanitarian and compassionate considerations, that admission should be facilitated or an exemption from the regulations made under the Act should be granted. [Emphasis added.]", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-44", + "id": "scc-1940-45", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 64–65", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 61", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.\n\nThus, it is my opinion that the RAD did not err in using “mutatis mutandis” the implicit criteria from Raza to interpret subsection 110(4); this interpretation seems not only reasonable but also correct. Furthermore, the RAD could reasonably find that the Diploma was inadmissible because it could not be considered fresh evidence. The RAD essentially based its finding on the fact that the respondent had access to the Diploma at the time of his hearing before the RPD on April 2, 2013, since the CBSA had sent a copy of it to his counsel and he could have obtained a copy from the CBSA and submitted it himself as evidence to the RPD.", - "current_to": "2016-03-29", + "text": "A waiver granted under s. 114(2) is referred to as a Minister’s permit. Although a decision under s. 114(2) is officially made by the Minister, in practice, and like a ministerial decision under s. 52 of the Act, the decision is dealt with in the name of the Minister by immigration officers: see Baker, at para. 15, and Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565, at p. 569. Most commonly, s. 114(2) is used to exempt persons already in Canada who wish to apply for landing from within the country and therefore must obtain a waiver from the normal requirement to obtain an immigrant visa outside Canada. This was the situation applicable to Mavis Baker in Baker, supra. Ms. Baker lived illegally in Canada for 11 years as a domestic worker before a removal order was made against her. She then applied to the Minister for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate considerations, pursuant to s. 114(2) of the Act. As the intervener I.R.B. points out, s. 114(2) must be relied on by illegal residents who wish to remain in Canada when a removal order has been made against them because such individuals do not have a right to appeal to the I.A.D. Essentially, s. 114(2) is the only recourse provided by the Act for such individuals.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-45", + "id": "scc-1940-46", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 66", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 62", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "It is true that the immigration officer apparently did not submit the Diploma to the RPD, as he should have under subsection 3(5) of the RPD Rules. Furthermore, the respondent contends that he only learned in June 2013 that his lawyer before the RPD had received a copy of that document in February 2013. However, that claim by itself is not enough to relieve the respondent of any responsibility. It is settled that an applicant must live with the consequences of the actions of his counsel: Cove c. Canada (Minister of Citizenship and Immigration), 2001 FCT 266 at paras. 6-11, [2001] F.C.J No. 482. As the Federal Court noted in Nagy v. Canada (Minister of Citizenship and Immigration), 2013 FC 640 at para. 60, [2013] F.C.J No. 664, “[t]here is a high threshold governing the circumstances and evidentiary criteria that must be met before the Court will grant relief under section 18.1 of the Federal Courts Act on the basis of the negligence of counsel.” See also: Bedoya v. Canada (Minister of Citizenship and Immigration), 2007 FC 505 at para. 19, [2007] F.C.J No. 680.", - "current_to": "2016-03-29", + "text": "However, the Minister argues in this appeal that s. 114(2) can also be used by permanent residents who have recently lost their permanent resident status pursuant to s. 24(1)(b) of the Act as a result of the I.A.D. upholding a removal order made against them. The argument is that such individuals could then apply to be “reinstated” as permanent residents by the Minister based on humanitarian and compassionate considerations. In this way, potential foreign hardship would be considered by the Minister under s. 114(2) after the s. 52 decision as to country of removal has been made, rather than by the I.A.D. under s. 70(1)(b) prior to the s. 52 decision. Linden J.A. accepted this argument in the court below.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-46", + "id": "scc-1940-47", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 67", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 63", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In this respect, I would note that it is settled in Federal Court immigration jurisprudence that an allegation of professional incompetence of counsel will not be upheld if there is no evidence that a complaint has been filed with the competent authorities of the bar to which the counsel belongs or without an explanation personally issued by the professional involved: see as examples, Odafe v. Canada (Minister of Citizenship and Immigration), 2011 FC 1429 at para. 8, [2011] F.C.J No. 1762; Teganya v. Canada (Minister of Citizenship and Immigration), 2011 FC 336 at paras. 26-37, [2011] F.C.J No. 430; Parast v. Canada (Minister of Citizenship and Immigration), 2006 FC 660 at para. 11, [2006] F.C.J No. 844; Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 269 at paras. 17-28, [2008] F.C.J No. 344. Indeed, the Federal Court adopted a protocol in March 2014 outlining the procedure when a party wishes to make such an allegation, and in particular setting out the obligation to send a notice to counsel who is the subject of the allegations that are to be made against him or her and invite him or her to provide a response that could be submitted to the Court (Procedural Protocol Re: Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court (March 7, 2014), on line: Federal Court of Canada ).", - "current_to": "2016-03-29", + "text": "But as Waldman, supra, asks at § 10.133.3: Can a person who has been admitted to Canada as a permanent resident and who has had that status removed as a result of ministerial action, but who has not yet been deported from Canada, seek to be granted the very status which has so recently been removed from him or her? Can a permanent resident under a deportation order seek and be granted landing prior to the deportation order being executed? In my opinion, this was not the intended role of s. 114(2) within the scheme of the Act, at least as a matter of general recourse. The scheme of the Act does not support the view that a s. 114(2) application could be made by every individual being removed from Canada. Instead, the Act provides for the I.A.D. to deal with the majority of issues surrounding the removal of individuals from Canada, absent the I.A.D. losing jurisdiction because an individual has been determined to be a danger to the public or a threat to national security. Without foreclosing the operation of s. 114(2) in other circumstances, I conclude that there is no need to resort to it in this case. Provided a permanent resident is able to establish a likely country of removal during the s. 70(1)(b) appeal, the I.A.D. should be able to consider potential foreign hardship when deciding whether to quash or stay the removal order.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-47", + "id": "scc-1940-48", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 68–70", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 64", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In this case, the judge determined that it was unreasonable for the RAD to expect the applicant to know of the complaints procedure before the Barreau du Québec, much less be willing to attack the competence and ethics of his former counsel. I do not share that opinion. Not only does the judge not cite any precedent to support her finding, but she also ignores the fact that the applicant was represented by experienced counsel before the RAD.\n\nIn short, the RAD could reasonably conclude in the circumstances that the Diploma did not constitute new evidence. This piece of evidence is not new; it was accessible to the respondent, and his lawyer had received a copy from the CBSA. Since the respondent had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her with the appropriate authorities, the RAD had no choice but to reject this evidence in accordance with subsection 110(4) of the IRPA.\n\nLastly, the judge invoked the possibility that inadmissibility of evidence could give rise to “serious issues of procedural equity” because a claimant who is deserving of a hearing could be refused one. In her opinion, such was the case here: “In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible” (para. 53).", - "current_to": "2016-03-29", + "text": "To summarize, the scheme of the Act reveals that an appeal to the I.A.D. under s. 70(1)(b) is the most appropriate place for a permanent resident facing removal from Canada to have foreign hardship taken into account. A harmonious reading of the scheme of the Act reveals that all relevant considerations should be considered by the I.A.D. whenever possible. It is only when it is not possible for the I.A.D. to consider potential foreign hardship that other provisions of the Act need be resorted to. These alternative provisions are not as robust as a hearing before the I.A.D. The judicial review of a s. 52 decision provides only narrow grounds for review, and an application to the Minister under s. 114(2) is essentially a plea to the executive branch for special consideration which is not even explicitly envisioned by the Act. Furthermore, the Act does not provide an automatic stay of the removal order when either of these alternative routes is pursued, as it does for appeals before the I.A.D. For all of these reasons, the scheme of the Act favours allowing the I.A.D., a specialized tribunal with ample procedural protections, to take foreign hardship factors into account whenever a likely country of removal has been established. 3. Object and Intention", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-48", + "id": "scc-1940-49", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 71–72", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 65–66", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "However, as mentioned above, holding a hearing is not automatic simply because new evidence is admitted before the RAD. This new evidence must still meet the three criteria set out in subsection 110(6) of the IRPA. In this case, there was not even an attempt to show how the Diploma was determinative in establishing the respondent’s credibility and how it would make up for the various shortcomings that the RPD identified in his testimony and that were confirmed by the RAD. It should be recalled that the RPD found that the respondent’s narrative was deficient in several respects: he contradicted himself about precisely when his father had had a heart attack; neither his allegations of torture nor his father’s purported medical condition are corroborated by the medical evidence; he presented as evidence fraudulent and altered documents; and he took no steps to obtain probative, acceptable documents with which to establish his identity. In light of all these factors, it is far from a given that the Diploma would be essential in deciding the respondent’s refugee protection claim and would warrant allowing this claim.\n\nConsequently, it cannot be assumed that admitting this document into evidence would have led to a hearing or that its rejection undermined procedural fairness. Nor can one invoke the possibility that a hearing might have resulted from the admission into evidence of the Diploma to argue for a flexible interpretation of subsection 110(4): not only does holding a hearing in the present case seem highly theoretical, but the admissibility of a piece of evidence cannot be assessed by taking account of the consequences that could result for the purposes of applying subsection 110(6).", - "current_to": "2016-03-29", + "text": "Turning to object and intention, I conclude that both the object of the Act and the intention of Parliament support such a reading of s. 70(1)(b). The object of the Act is to create a comprehensive administrative scheme to deal with immigration issues in Canada. Under this administrative scheme, Parliament has given certain powers to the I.R.B. and certain powers to the Minister, with a limited supervisory role to be played by the courts. The role of this Court in this appeal is to ensure that Parliament’s intended division of powers is respected, in accordance with the controlling legislation.\n\nParliament intended the I.A.D. to have a broad discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so. This is apparent from the open-ended wording of s. 70(1)(b), which does not enumerate any specific factors to be considered by the I.A.D. when exercising its discretion under this provision. The ability to quash or stay removal orders based on ameliorating or compassionate factors was granted to the I.A.D. partially as a result of the removal of the domicile provisions from the Act in 1977. The object of s. 70(1)(b) is to give the I.A.D. the discretion to determine whether a permanent resident should be removed from Canada. This is, admittedly, an unusual provision in that it gives the I.A.D. considerable discretionary power in dealing with the removal of permanent residents. But granting this discretionary power was a decision of Parliament. If Parliament is now concerned that such a broad grant of administrative discretion has been made, it is open to Parliament to amend the legislation.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-49", + "id": "scc-1940-50", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 73", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 67–68", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "For all the above reasons, I am of the opinion that the appeal should be allowed, that the Federal Court judgment should be set aside and that the RAD decision should be confirmed. Accordingly, the respondent is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the IRPA.", - "current_to": "2016-03-29", + "text": "It would be inconsistent with these objectives for this Court to narrow the I.A.D.’s discretionary jurisdiction under s. 70(1)(b), and thereby leave foreign hardship concerns to be considered only by the Minister under s. 52 or a s. 114(2) application, or by the courts on either an application for judicial review of a s. 52 or s. 114(2) decision or an independent Charter action. Such a bifurcation of the administrative process was not envisioned by Parliament, as evidenced by the absence of procedural provisions and statutory stays for such proceedings, and would result in unnecessary complexity and confusion in the administrative scheme. One of the objects of the Act is to streamline immigration proceedings in Canada, while providing full protection for Charter and common law rights.\n\nIn Building on a Strong Foundation for the 21st Century: New Directions for Immigration and Refugee Policy and Legislation, supra, the Minister expressed a commitment to reduce delays and “multiple decision layers” in the immigration appeal system (p. 52). I therefore believe that it is consistent with the object of the Act to avoid the bifurcation of the removal appeal process whenever possible. Bifurcation need be resorted to only in those cases where the I.A.D. is unable to consider potential foreign hardship. As a matter of policy and statutory design, the bifurcation in such cases will not be ideal. However, such shortcomings are not for this Court to remedy, absent the establishment of an unjustifiable Charter violation, which has not been argued in this case.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-143152-50", + "id": "scc-1940-51", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 74", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 69", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. “Yves de Montigny” J.A. “I agree M. Nadon J.A.” “I agree Johanne Gauthier J.A.” Translation FEDERAL COURT OF APPEAL", - "current_to": "2016-03-29", + "text": "Parliament has equipped the I.A.D. with all of the tools necessary to ensure that the requirements of natural justice are met when removing individuals from Canada, including providing for an oral hearing, the calling and cross-examination of witnesses, the tendering of evidence, the giving of reasons (when requested), and a right to seek judicial review of the I.A.D.’s decision (during which time the statutory stay of the removal order is in place). That these procedures are designed to meet the requirements of natural justice can be inferred from Wilson J.’s statement in Singh, supra, at p. 199, that a hearing before the I.A.B., the I.A.D.’s predecessor, is “a quasi‑judicial one to which full natural justice would apply”. These procedures help ensure that any relevant Charter rights will be respected. Parliament did not give the Minister similar tools for making ss. 52 or 114(2) decisions, where no oral hearing is required, no witnesses can be called, and a statutory stay is not provided either pending the decision or if judicial review is sought.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-1", + "id": "scc-1940-52", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 1–4", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 70", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Luis Alberto Hernandez Febles, a national of Cuba, was convicted in the United States in 1984 and 1993 of assault with a deadly weapon. He came to Canada in 2008 after completing his prison sentences and claimed refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (RPD) held that Article 1F (b) of the United Nations Convention relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No 6 (Convention) excluded him from the definition of a refugee. This was because his convictions in the United States provided serious reasons for considering that he had committed “a serious non-political crime” outside Canada.\n\nMr Febles says that alcohol was a factor that led to his commission of these crimes, he has served his sentences, and is now rehabilitated. He argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status, and to protect the public of a receiving state from convicted criminals who are dangerous. Since Mr Febles had served his sentence, he was not a fugitive from justice. Consequently, he says, the RPD was obliged to consider whether, despite his criminal record, he represents a danger to the Canadian public.\n\nThe question to be decided in this appeal is whether the RPD erred in law because, in determining if Mr Febles was excluded from refugee status on the ground that he had committed a “serious” crime within the meaning of Article 1F (b), it failed to consider whether he was rehabilitated and posed a present danger.", - "current_to": "2012-12-07", + "text": "As Cory J. stated, in dissent, in Pushpanathan, supra, at para. 157, when an individual faces removal from Canada: . . . it would be unthinkable if there were not a fair hearing before an impartial arbiter to determine whether there are “substantial grounds for believing” that the individual to be deported would face a risk of torture, arbitrary execution, disappearance or other such serious violation of human rights. In light of the grave consequences of deportation in such a case, there must be an opportunity for a hearing before the individual is deported, and the hearing must comply with all of the principles of natural justice. As well, the individual in question ought to be entitled to have the decision reviewed to ensure that it did indeed comply with those principles. The protections provided in relation to a s. 70(1)(b) appeal to the I.A.D. satisfy these requirements. While the Minister’s decisions under ss. 52 and 114(2) may well accord with the requirements of natural justice in most cases, I am concerned that this will not always be the case. Baker, supra, is one example of an instance where the Minister’s decision was procedurally deficient. It fell to this Court to clarify that the principles of natural justice guarantee certain rights to individuals who make a s. 114(2) application, including a right to make written submissions to the Minister’s delegate who actually makes the decision, a right to receive brief reasons for the decision, and a right to an unbiased decision maker. However, it is clear that the procedural protections required may vary with the context of the case: Singh, supra, at p. 213, per Wilson J.; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361, per La Forest J.; Syndicat des employés de production du Québec et de l’Acadie v.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-2", + "id": "scc-1940-53", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 5–8", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 70–71", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, the RPD correctly concluded that whether a refugee claimant who has served his sentence poses a present danger to the Canadian public is not relevant for determining the seriousness of a crime for the purpose of Article 1F (b). Accordingly, I would dismiss the appeal from the decision of the Federal Court (2011 FC 1103), in which Justice Scott (Application Judge) denied Mr Febles’ application for judicial review to set aside the RPD’s decision. B. FACTUAL BACKGROUND\n\nMr Febles left Cuba in 1980 and was accepted by the United States as a refugee by virtue of his fear of persecution as a political dissident. However, he subsequently lost his refugee status as a result of his criminal convictions, and is subject to an administrative warrant of removal from the United States.\n\nMr Febles entered Canada illegally on October 12, 2008, and two days later applied for refugee protection on the ground of a well-founded fear of persecution in Cuba for his political beliefs. During his interview with an officer of the Canada Border Services Agency (CBSA) to determine whether the claim was eligible to be referred to the RPD, Mr Febles revealed his criminal convictions in the United States.\n\nOn the basis of a report filed by a CBSA officer, Mr Febles was referred to the Immigration Division of the Immigration and Refugee Board for an inadmissibility hearing. Following that hearing, Mr Febles was found to be inadmissible and a deportation order was issued dated June 3, 2010. The basis of the inadmissibility finding was that he had been convicted of an offence outside Canada for which he could have been sentenced to a maximum of at least 10 years’ imprisonment if it had been committed in Canada.", - "current_to": "2012-12-07", + "text": "Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895‑96, per Sopinka J.; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, per L’Heureux‑Dubé J.; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 882; and Dehghani, supra, at p. 1076.\n\nWhen faced with the problem of a statute which can be read in two ways, one that accords with the principles of natural justice and one that does not, this Court has consistently adopted the interpretation that favours a fuller assurance that the requirements of natural justice will be met: Alliance des professeurs catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140, at p. 166, per Fauteux J.; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, at p. 328, per Laskin C.J.; and Singh, supra, at p. 200, per Wilson J. Therefore, for the purposes of this appeal, a reading of the Act which allows permanent residents to have foreign hardship considered by the I.A.D., where a likely country of removal has been established, is preferable. C. Precedent", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-3", + "id": "scc-1940-54", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 9–10", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 72", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Despite Mr Febles’ criminal record, a CBSA officer decided not to request the Minister of Citizenship and Immigration (MCI) for an opinion as to whether his claim was ineligible to be referred to the RPD on the ground that he posed a danger to the public in Canada. Nonetheless, on August 10, 2010, the Minister of Public Safety and Emergency Preparedness (MPSEP) filed a notice of intervention in Mr Febles’ hearing before the RPD, alleging that Article 1F (b) excluded him from the definition of a refugee because there were serious reasons for considering that he had committed a serious non-political crime outside Canada. C. DECISION OF THE RPD\n\nIn its reasons for decision, dated October 27, 2010, the RPD described the circumstances surrounding the crimes of which Mr Febles had been convicted in 1984 and 1993, that is, assaults with a deadly weapon other than a firearm. He had been sentenced to two years in prison and three years on probation for each of these offences. He testified that he served just over a year of the first sentence, and then spent more time in prison for breaching the conditions of his probation. He served the entirety of the second sentence and observed his probation conditions. He said that since 1993 he has been sober and has not re-offended.", - "current_to": "2012-12-07", + "text": "Given the way the issue involved in this appeal arose, I wish to briefly review the cases relied on by the Federal Court to conclude that the I.A.D. cannot consider potential foreign hardship on an appeal under s. 70(1)(b). The debate surrounding the jurisdiction of the I.A.D. developed essentially because the factors stated by the I.A.B. in Ribic, supra, as being relevant to an appeal under s. 70(1)(b) were revisited by the Federal Court of Appeal beginning with Hoang, supra. This was a somewhat surprising development, given that the Ribic factors were applied for many years by the I.A.D. without objection by the Minister. All indications are that the system worked rather well.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-4", + "id": "scc-1940-55", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 11–13", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 73", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Focussing on the second offence, the RPD noted that Mr Febles’ conviction had been for an offence for which a maximum sentence of at least 10 years’ imprisonment could be imposed if committed in Canada, and that this raised a presumption that the crime was “serious”. However, it also stated that this presumption could be rebutted by other factors. Nonetheless, the RPD concluded that the gravity of Mr Febles’ crime excluded him from refugee protection, even though he had committed the more recent of the crimes 17 years ago, was remorseful, had served his sentence, and has chosen “to follow a straighter path” since 1993 (RPD reasons at para. 24). D. DECISION OF THE FEDERAL COURT\n\nThe Application Judge relied on Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R 164 at para. 44 (Jayasekara) for the proposition that in determining whether a refugee claim is excluded by Article 1F (b) a court should not balance the seriousness of the crime as indicated by the maximum punishment that it carries if committed in Canada against “factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin”.\n\nAccordingly, the Application Judge held (at para. 50) that Mr Febles’ completion of his sentence was relevant only to the seriousness of the crime, not to “rehabilitation, expiation, recidivism and on-going danger.” The RPD was precluded from taking rehabilitation into account in assessing the seriousness of the crimes committed by Mr Febles. It had therefore not unlawfully fettered the exercise of its discretion by failing to address whether he currently posed a danger to the Canadian public.", - "current_to": "2012-12-07", + "text": "The confusion that has now arisen appears to have its genesis in the decision of the I.A.B. in Markl v. Minister of Employment and Immigration, No. V81-6127, May 27, 1985, which was relied on in Hoang, supra, and consequently was also considered by the courts below in this case and in Al Sagban, supra. Markl was both a permanent resident and a Convention refugee. A removal order was made against him as the result of a series of criminal offences. Although a Convention refugee, Markl could have been removed to his country of nationality because his offence was sufficiently serious to bring him within the exception in s. 55(c) of the Act (now s. 53(1)). This provision allows Convention refugees who have committed a serious offence to be removed to a country where they may face persecution. The policy of the Canadian government at the time, however, was not to deport people to Czechoslovakia, Markl’s country of nationality. The I.A.B. was therefore in the unusual position of knowing the likely country of removal but also knowing that Markl would not be deported there at that time. However, the I.A.B. declined to take judicial notice of the government policy in question because such policies change from time to time. As a result, it took into account the conditions Markl would face in Czechoslovakia in making its discretionary decision under s. 70(1)(b) — the fact that his parents were still there, that he spoke the language and had lived there until he was 18, and the fact that he would be jailed for 18 months for deserting if he was returned to Czechoslovakia. Weighing these factors along with the relevant domestic ones, it declined to exercise its discretionary jurisdiction in favour of allowing Markl to remain in the country.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-5", + "id": "scc-1940-56", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 14–16", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 74", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "The Application Judge certified the following question for appeal to this Court pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, 2001 S.C., c. 27 (IRPA): When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?\n\nFor the reasons that follow I would answer the certified question in the negative and dismiss the appeal. E. LEGISLATIVE FRAMEWORK\n\nAn understanding of the issue raised in this appeal depends in part on locating it within the complex statutory scheme created by IRPA for the consideration of criminality in a variety of contexts.", - "current_to": "2012-12-07", + "text": "It was in this context that the I.A.B. stated, at p. 5: The Board is seized with an appeal from a deportation order. It has to rule on the validity of this order. Should the appeal fail, the issue of to where the appellant may be deported is a separate one; one over which the Board has no jurisdiction. [Emphasis added.] However, this passage simply clarifies that once the I.A.D. upholds a removal order, the issue of where the individual will be removed to is a matter for the Minister. If the Minister has a policy not to remove to a particular country, then the removal may be delayed. This passage is not authority for the proposition that the I.A.D. can never consider potential foreign hardship. In fact, it stands for just the opposite, as the I.A.B. was considering factors related to Czechoslovakia in deciding whether or not to deport Markl. Unfortunately, this was not the interpretation given to Markl when Hoang was decided.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-6", + "id": "scc-1940-57", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 17", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 75", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Paragraph 36(1)(b) of IRPA applies to all non-nationals and describes the circumstances in which they are inadmissible to Canada on the basis of criminal convictions outside Canada. However, paragraph 36(3)(c) provides that persons to whom paragraph 36(1)(b) applies are not inadmissible if, after the prescribed period, they satisfy the MCI that they have been rehabilitated. 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for … (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or … 36. (3) The following provisions govern subsections (1) and (2): … (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] 36. (3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) : […] c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, à l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;", - "current_to": "2012-12-07", + "text": "When Hoang v. Canada (Minister of Employment and Immigration) was before the I.A.B., [1987] I.A.B.D. No. 6 (QL), the majority incorrectly relied on Markl as authority for the I.A.B. not being able to consider potential foreign hardship. Board Member Townshend dissented, stating, at para. 32: . . . certainly, the Board has no jurisdiction to tell or not to tell the Minister to which country he should or can deport a permanent resident. But I cannot agree that Markl stands for the proposition that the prospective removal of a Convention refugee to the very country from which he has escaped persecution is not one of the circumstances which the Board is entitled to consider under paragraph 72(1)(b) [now s. 70(1)(b)] which requires the Board to consider “all the circumstances of the case.” With the greatest of respect for the opposite view, Board Member Townshend was correct. The I.A.D. cannot make a decision as to the country of removal, because this decision is reserved to the Minister under s. 52. But when there is a likely country of removal, the I.A.D. can consider potential foreign hardship when exercising its discretionary jurisdiction.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-7", + "id": "scc-1940-58", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 18", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 76", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Section 101 of IRPA describes claims that are not eligible to be referred to the RPD. These include claims for refugee protection by claimants who are inadmissible to Canada for serious criminality under subsection 36(1) and whom the MCI believes are a danger to the public in Canada. 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless … (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. 101. (1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) — , grande criminalité ou criminalité organisée.", - "current_to": "2012-12-07", + "text": "Hoang, like Markl, was both a refugee and a permanent resident and had committed a sufficiently serious offence to be returned to a country where he feared persecution (under the exception in s. 55(c), now s. 53(1), of the Act). Vietnam was the likely country of removal. The Minister made a submission in this regard at the hearing of the s. 70(1)(b) appeal. While it may not have changed the outcome of the appeal, the hardship Hoang would face in Vietnam should have been considered. With respect, I believe that the Federal Court of Appeal erred in concluding that the I.A.B. was correct in refusing to consider potential foreign hardship. MacGuigan J.A. stated, for the court, at para. 8, “that the Board’s jurisdiction is only over whether a person should be removed from Canada, not as to the country of removal”. This is true, but the decision of whether an individual should be removed can be informed by considerations of potential foreign hardship when the likely country of removal has been established.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-8", + "id": "scc-1940-59", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 18–20", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 77–78", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "(2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : […] b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada.\n\nEven when a claim is not ineligible to be referred to the RPD under section 101, in some situations the RPD must reject it. Article 1F (b) of the Convention, which section 98 of IRPA incorporates into IRPA by reference, sets out the situation relevant to the present appeal. 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.\n\nArticle 1F (b) of the Refugee Convention provides as follows. 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: … (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; … 1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : […] b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; […]", - "current_to": "2012-12-07", + "text": "In my opinion, neither Markl nor Hoang establishes a blanket prohibition against the I.A.D. considering potential foreign hardship. I agree with Reed J.’s interpretation of these cases in Al Sagban, at p. 509: The focus of this comment [about Markl, by MacGuigan J.A. in Hoang] appears to have been on whether or not the Board had jurisdiction to determine the country of destination for the applicant in this type of case. There is no express statement that the Board is not entitled to assess the harm that would befall an applicant in his country of origin if he were returned there. I consider this issue to be unresolved. As a result of this appeal, this issue is now resolved: the I.A.D. can consider potential foreign hardship under s. 70(1)(b) when the likely country of removal has been established by an individual facing removal. The approach set out by the I.A.B. in Ribic, supra, remains sound.\n\nAlthough Linden J.A. was correct in noting, at p. 612, that “[c]onsistency is a virtue” in dealing with ss. 52 and 70(1) of the Act, the consistency to be achieved is not that the I.A.D. can never consider potential foreign hardship under its discretionary jurisdiction but that it can do so only when a likely country of removal has been established. In the case of Convention refugees, it is less likely that a country of removal will be ascertainable. But permanent residents who are not Convention refugees will usually be able to establish a likely country of removal, thereby permitting the I.A.D. to consider any potential foreign hardship they will face upon removal to that country.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-9", + "id": "scc-1940-60", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 21", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 79–80", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Although excluded from refugee status by the above provisions and subject to a removal order on the ground of inadmissibility, a claimant may apply to the MCI for a pre-removal risk assessment (PRRA). However, paragraph 112(3)(c) provides that applicants for protection on a PRRA cannot be granted protection as refugees as defined by section 96 if their claim for refugee protection was rejected pursuant to Article 1F. Paragraph 113(d)(i) states that an immigration officer will consider the PRRA of these applicants for protection on the basis of the risk factors set out in section 97 (death, torture, or cruel and unusual treatment or punishment) and whether they are a danger to the public in Canada. Even if denied refugee status by subsection 112(3), successful applicants for a PRRA can obtain a stay of removal by virtue of subsection 114(1). 112. … (3) Refugee protection may not result from an application for protection if the person … (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; … (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; … 113.", - "current_to": "2012-12-07", + "text": "I also wish to clarify any confusion that has arisen over MacGuigan J.A.’s statement in Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.), at p. 286, for the court, that a discretionary decision under s. 70(1)(b) requires the consideration of “every extenuating circumstance that can be adduced in favour of the deportee”. The Federal Court of Appeal erred in the case at bar in concluding that Canepa was not applicable because “there was no discussion of the conditions in the country to which the appellant would be deported” (para. 22). In fact, the I.A.D. had examined the potential hardship Canepa would face in the likely country of removal, as excerpted by MacGuigan J.A. at p. 284: Although he has no close relatives in Italy he is a toughened street-wise twenty-six-year-old adult who is in no different a predicament than many immigrants are when they emigrate to Canada. Although he is not now fluent in Italian, he has resided in a family setting where Italian is spoken and he ought to be able to achieve reasonable facility in that language soon after his return to Italy. The instruction to the I.A.D. to consider every extenuating circumstance is sound. Those circumstances may, in appropriate cases, include potential foreign hardship. D. Policy Concerns\n\nI also wish to address briefly the concerns expressed by the Federal Court of Appeal with respect to allowing the I.A.D. to consider potential foreign hardship. 1. Prolonging Hearings", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-10", + "id": "scc-1940-61", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 21", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 81–82", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "Consideration of an application for protection shall be as follows: … (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or … 112. […] (3) L’asile ne peut être conféré au demandeur dans les cas suivants : […] b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; […] 113. Il est disposé de la demande comme il suit : […] d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, […] 114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. 114.", - "current_to": "2012-12-07", + "text": "The I.A.D. has considered the potential foreign hardship an individual would face upon removal for well over a decade, following Ribic, supra. There is no evidence that this consideration prolonged hearings before the I.A.D. by any significant extent. The intervener I.R.B. supports this view. Many of the witnesses called to speak about an individual’s situation in Canada will also be able to speak to the situation the individual will face in the likely country of removal, particularly family members. Furthermore, the likely country of deportation will rarely be in dispute. When the country of removal is in dispute, the issue can be quickly decided following submissions from the individual facing removal and the Minister. 2. The I.A.D. is not Designed nor Equipped\n\nHearings before the I.A.D. are adversarial in nature, unlike those before the C.R.D.D., which are more inquisitorial in nature. Evidence regarding potential foreign hardship can be adduced before the I.A.D. on a similar basis to establishing a fact in any other adversarial proceeding. Witnesses can be called, and written evidence can be submitted. Unlike the C.R.D.D., where staff research country conditions, the parties are responsible for researching and supplying this evidence before the I.A.D. The Minister is entitled to disclosure of all documents relied on by an individual appealing a removal order, and can have the documents verified prior to the hearing or can challenge their validity at the hearing by way of evidence, cross-examination or argument. In any event, much of the relevant evidence regarding potential foreign hardship will relate to personal concerns, such as language ability, family connections, and availability of necessary health care, which can all be readily established before the I.A.D.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-11", + "id": "scc-1940-62", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 21–23", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 83", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. F. ANALYSIS (i) Standard of review\n\nMr Febles argues that correctness is the standard of review applicable to the RPD’s interpretation of Article 1F (b) of the Convention, which is incorporated into IRPA by section 98, the RPD’s enabling statute. Although reasonableness is now presumed to be the standard of review normally applied to a tribunal’s interpretation of its enabling statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39), Mr Febles submits that the presumption of reasonableness is rebutted in this case.\n\nThe Minister takes no position on this issue, arguing that the appeal must fail whichever standard of review applies, and that it is therefore unnecessary for the Court to decide the issue. Federal Court jurisprudence on the standard of review applicable to the RPD’s interpretation of Article 1F (b) is not settled. For example, the Application Judge in the present case applied the reasonableness standard, while in Feimi v. Canada (Minister of Citizenship and Immigration), 2012 FC 262, the companion case before us, a different Application Judge applied correctness. The existence of this kind of uncertainty is sufficient reason for this Court to decide the standard of review applicable to the RPD’s interpretation of Article 1F (b).", - "current_to": "2012-12-07", + "text": "The intervener I.R.B., at para. 41 of its written submissions to this Court, confirms that it is designed and equipped to consider such matters, and has done so for two decades: For almost 20 years, the I.A.D. and its predecessor tribunal have operated within this statutory scheme and have effectively provided a full oral hearing and consideration of all the circumstances of the case, including circumstances in the likely country of removal. I therefore have little hesitation in concluding that the I.A.D. is designed and equipped to consider potential foreign hardship. While it is undoubtedly designed differently than the C.R.D.D., there is no reason to believe that the I.A.D. is an unsuitable forum to consider foreign hardship concerns. 3. An Alternative Refugee System", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-12", + "id": "scc-1940-63", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 24–26", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 84", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "I agree with Mr Febles that the normal presumption that reasonableness is the standard of review applicable to tribunals’ interpretation of their enabling statute does not apply in this case. Article 1F (b) is a provision of an international Convention that should be interpreted as uniformly as possible: see, for example, Jayasekara at para. 4. Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting Article 1F (b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness. Further, the interpretation of Article 1F (b) does not give rise to any ambiguity.\n\nAccordingly, the prior jurisprudence of this Court applying the correctness standard of review to the RPD’s interpretation of Article 1F (b) should be regarded as having satisfactorily resolved the issue: Dunsmuir para. 62. (ii) Is rehabilitation or present dangerousness relevant to deciding if a non-political crime is “serious”?\n\nMr Febles concedes that a crime punishable by a maximum of 10 years’ imprisonment if committed in Canada is presumed by Canadian courts to be “serious” for the purpose of Article 1F (b), and that the crimes of which he was convicted in the United States fall into this category.", - "current_to": "2012-12-07", + "text": "Only the C.R.D.D. has the jurisdiction to determine that an individual is a Convention refugee. The I.A.D. cannot make such a finding, nor does it do so when it exercises its discretion to allow a permanent resident facing removal to remain in Canada. When exercising its discretionary jurisdiction, the I.A.D. does not directly apply the 1951 Geneva Convention, which protects individuals against persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Instead, the I.A.D. considers a broader range of factors, many of which are closely related to the individual being removed, such as considerations relating to language, family, health, and children. Even when examining country conditions, the I.A.D. can consider factors, such as famine, that are not considered by the C.R.D.D. when determining if an individual is a Convention refugee. These foreign concerns are weighed against the relevant domestic considerations in making the final decision as to the proper exercise of the I.A.D.’s discretion. As a result of this broad-based balancing exercise, the protections offered to non-refugee permanent residents are of a different nature than those provided to Convention refugees. In this respect, I reiterate that it is only refugees who are protected from refoulement, as guaranteed by Article 33 of the 1951 Geneva Convention (enacted into Canadian law by s. 53 of the Act).", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-13", + "id": "scc-1940-64", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 27–29", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "para 85", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "However, he argues that the seriousness of a crime must be assessed as of the time when the exclusion issue comes to be decided. Mr Febles submits that the purpose of Article 1F (b) relevant to the present case is to protect receiving states from having to grant refugee status to dangerous criminals. Consequently, a crime should not normally be regarded as “serious” if the claimant has served the sentence imposed and is no longer dangerous. Accordingly, the RPD erred in law when it failed to consider his rehabilitation after 1993 and whether he currently posed a danger to the Canadian public.\n\nThe Application Judge regarded Jayasekara as precluding the RPD from considering whether Mr Febles was rehabilitated and currently dangerous. Mr Febles argues that Jayasekara does not resolve the issue because it is either distinguishable or wrong and should not be followed. (a) What Jayasekara decided\n\nThe certified question put to the Court in Jayasekara was whether the fact that a refugee claimant who had committed a serious crime outside Canada had served his sentence enabled him to avoid the application of Article 1F (b). After examining Canadian and international jurisprudence on the issue, the Court answered the question in the negative.", - "current_to": "2012-12-07", + "text": "If a permanent resident has a refugee claim before the C.R.D.D. at the same time that he or she is appealing a removal order to the I.A.D., the I.A.D. holds the appeal in abeyance until the C.R.D.D. has determined the refugee claim. As the intervener I.R.B. submits at para. 34 of its factum: This sequencing of cases enables the C.R.D.D. to determine if the person is a Convention refugee. The I.A.D. can then consider this decision as one of the many factors in assessing “all the circumstances of the case”. This procedure respects the separation of the adjudicative functions of the two Divisions and the exclusive jurisdiction of the C.R.D.D. to determine Convention refugee status. I agree. Furthermore, I do not believe that the I.A.D. is attempting to do indirectly what it cannot do directly by considering foreign hardship when hearing a s. 70(1)(b) appeal. If the Minister is concerned that the I.A.D. will quash or stay a removal order based on foreign hardship concerns, the Minister is free to make a submission at the s. 70(1)(b) appeal hearing that the individual will be removed to a country other than the one in which hardship concerns have been raised. For individuals who have committed sufficiently serious offences, the Minister can also remove their right of appeal to the I.A.D. under s. 70(5) of the Act.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-14", + "id": "scc-1940-65", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 30–32", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 86–87", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, the heart of the Court’s reasoning in Jayasekara is contained in paragraph 44 of the reasons where, writing for the Court, Létourneau J.A. said: I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F (b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction. … In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin. …. [Emphasis added]\n\nAn argument that a crime may be regarded as less serious years after its commission because the claimant is rehabilitated and is no longer a danger to the public would seem inconsistent with this passage. Rehabilitation is indisputably a factor “extraneous to the facts and circumstances underlying the conviction”. It is therefore not to be balanced against the presumed seriousness of the crime arising from the fact that, if committed in Canada, the crime is punishable by a maximum of at least 10 years’ imprisonment.\n\nHowever, Mr Febles says that, while Jayasekara decides that completing a sentence does not in itself remove a claimant from the application of Article 1F (b), it is still a factor that the RPD may consider. If the RPD may consider sentence completion, he argues, it may also consider other post-conviction facts, including rehabilitation.", - "current_to": "2012-12-07", + "text": "I therefore cannot agree that the I.A.D. is creating an alternative refugee system when it allows permanent residents to remain in Canada because of foreign hardship concerns. Parliament gave the I.A.D. the wide jurisdiction to make such discretionary decisions, and the factors weighed by the I.A.D. in exercising this discretion are very different than those considered by the C.R.D.D. when determining whether an individual is a Convention refugee. 4. The Checks and Balances of Sections 69.2 and 44(1) of the Act\n\nSection 69.2 of the Act allows the government to attempt to strip a Convention refugee of his or her status. As just noted, s. 44(1) prevents a refugee claim from being made by any person in Canada against whom a removal order has been entered. While Linden J.A. is correct in identifying these provisions as providing checks and balances for Canada’s refugee system, their presence indicates little about Parliament’s intent in dealing with non-refugee permanent residents. Parliament could just as easily enact a provision establishing a process to strip permanent residents of their status. However, Parliament chose to leave such considerations to the I.A.D., at least for those individuals who have not lost their ability to appeal to the I.A.D. (i.e. pursuant to ss. 70(5) or 81(6) of the Act). To reiterate, there is no need for absolute consistency in how the Act deals with Convention refugees and non-refugee permanent residents. Furthermore, Parliament has provided a balancing mechanism applicable to permanent residents in allowing the I.A.D. to stay a removal order, to which conditions can be attached and which can be reviewed when necessary (s. 74). E. Application to the Facts of the Case at Bar", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-15", + "id": "scc-1940-66", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 33–35", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 88–89", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In this regard, Mr Febles points to paragraph 41 of the reasons of Létourneau J.A., where he stated that if the length or completion of a sentence is to be considered under Article 1F (b), “it should not be considered in isolation.” However, I cannot attach the same significance as Mr Febles to this single reference to the completion of a sentence.\n\nFirst, the discussion following paragraph 41 explains why the length of a sentence is an unreliable guide to the seriousness of a crime, and hence is often of little value on assessing the seriousness of the crime. The completion of a sentence is not even mentioned in this discussion. Second, neither the length nor completion of a sentence is included in the factors listed in paragraph 44 that may rebut the presumption of seriousness arising from the maximum sentence that could be imposed if the crime had been committed in Canada. Third, to interpret Jayasekara as allowing members of the RPD the discretion to consider completion of a sentence would likely lead to a lack of consistency in RPD decision-making bordering on arbitrariness.\n\nIn short, I agree with Justice Mosley in Camacho v. Canada (Minister of Citizenship and Immigration), 2011 FC 789 at para. 16, that it follows from the reasoning in Jayasekara that the mitigating circumstances to be considered by the RPD when determining whether a crime is “serious” for the purpose of Article 1F (b) do not include whether the claimant is rehabilitated and a danger to the public in Canada. These considerations are “extraneous to the facts and circumstances underlying the conviction”. (b) Should Jayasekara be followed?", - "current_to": "2012-12-07", + "text": "Applying these holdings to the case at bar, it is apparent that the likely country of removal had not been established before the I.A.D. The appellant has a wife and child in Vietnam, but is a national of Cambodia. The I.A.D. did not determine whether the appellant had successfully established Cambodia as the likely country of removal. Indeed, it appears that Vietnam was given greater consideration by Board Member Wiebe. However, the appellant submits that Vietnam is not obliged to accept him, as he is not a national of Vietnam, and therefore that Vietnam cannot be the likely country of removal. This critical issue was not resolved by the I.A.D.\n\nAs a result, this case must be returned to the I.A.D. for a rehearing. If the appellant establishes a likely country of removal at that time, the I.A.D. can consider the potential foreign hardship the appellant will face in that country in exercising its discretionary jurisdiction under s. 70(1)(b). VII. Summary and Conclusion", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-16", + "id": "scc-1940-67", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2002 SCC 3", + "act_short": "Chieu", + "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 36–38", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", + "marginal_note": "paras 90–91", + "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", + "part": "Supreme Court of Canada", "division": "", - "text": "In the alternative, Mr Febles says that the reasoning in Jayasekara is flawed and should not be followed. He identifies what he says are two errors in the Court’s reasoning. First, the Court erred in distinguishing Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.) (Chan) on the ground that there had been a material amendment to the legislation after Chan was decided. Second, the authorities cited for the propositions contained in paragraph 44 do not in fact support them.\n\nIn order to deal with the first point, it is necessary to briefly retrace the history of the interpretation of Article 1F (b) by this Court.\n\nChan held that Article 1F (b) applied to refugee claimants who were seeking to avoid extradition from Canada, and not to those who had been convicted of a crime outside Canada and had served their sentence before arriving here. To interpret the exclusion clause as applicable to the latter category of claimants would, said the Court, conflict with the scheme of the legislation, and operate to automatically deny that person’s right to a refugee hearing, regardless of [the person’s] attempts at rehabilitation and whether or not [they] constitute a danger to the Canadian public. In particular, the Court noted that criminality does not automatically render individuals inadmissible if the MCI is satisfied that they are rehabilitated. In the passage quoted above the Court may have left open the possibility that convicted criminals who have served their sentence could be excluded by Article 1F (b) if they were a danger to the public in Canada.", - "current_to": "2012-12-07", + "text": "For these reasons, the I.A.D. is entitled to consider potential foreign hardship when exercising its discretionary jurisdiction under s. 70(1)(b) of the Act, provided that the likely country of removal has been established by the individual being removed on a balance of probabilities. The Minister should facilitate the determination of the likely country of removal before the I.A.D. whenever possible, as this improves the efficient functioning of the Act. The factors set out in Ribic, supra, remain the proper ones for the I.A.D. to consider during an appeal under s. 70(1)(b). On such an appeal, the onus is on the individual facing removal to establish exceptional reasons as to why they should be allowed to remain in Canada. As the I.A.B. stated in Grewal v. Canada (Minister of Employment and Immigration), [1989] I.A.D.D. No. 22 (QL), the making of such a discretionary decision involves “the exercising of a special or extraordinary power which must be applied objectively, dispassionately and in a bona fide manner after carefully considering relevant factors” (p. 2).\n\nIn the instant case, the I.A.D. did not determine whether the appellant had established a likely country of removal. The appeal is therefore allowed with costs. The judgment of the Federal Court of Appeal is set aside, and the matter is returned to the I.A.D. for reconsideration in accordance with these reasons. The I.A.D. must consider, first, whether there is a likely country of removal and, if so, whether any hardships the appellant could potentially face in that country are sufficient to alter the previous balance of relevant factors and thereby permit the appellant to remain in Canada. Appeal allowed with costs.", + "current_to": "2002-01-11", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2002] 1 SCR 84", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" }, { - "id": "fca-37663-17", + "id": "scc-2284-1", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 39–40", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "para 1", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "This Court subsequently took a broader view of Article 1F (b) than that advanced in Chan. Thus, in Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, the claimant relied on Chan to argue that Article 1F (b) did not apply to him because he could not be extradited for the crimes that there were serious reasons for considering that he had committed, namely, being complicit by association in serious non-political crimes committed by an organization in which he had a leadership role.\n\nThe Court did not agree. Writing for the majority, Nadon J.A. said (at paras. 66 and 79 in particular) that a refugee claimant could be excluded under Article 1F (b) when there were serious reasons for considering that he had committed a serious non-political crime. It was not relevant for this purpose, he said, that the claimant could not be extradited because, for example, Canada had not concluded an extradition treaty with the state where the claimant’s crime was allegedly committed, or a specific crime could not be attributed to the claimant.", - "current_to": "2012-12-07", + "text": "The core question on these appeals is whether s. 196, a transitional provision of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), removes the right to appeal an order for removal to the Immigration Appeal Division (“IAD”), in the case of persons deemed inadmissible for serious criminality (i.e., sentenced to six months or more of imprisonment). The old statute (Immigration Act, R.S.C. 1985, c. I-2) granted this right of appeal. The new statute does not for those imprisoned over two years. The transitional provision took away the right to appeal an order for removal unless a party had, under the old Act, been “granted a stay”. The old Act provided for two kinds of stays: automatic stays and actively ordered stays. The appellants enjoyed only an automatic statutory stay. If the phrase “granted a stay” indicates both kinds of stays, the appellants’ right to appeal is preserved. Conversely, if it indicates only actively ordered stays, the appellants’ right to appeal is removed.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-18", + "id": "scc-2284-2", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 41–42", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 2–3", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "In concurring reasons, Décary J.A. (at paras. 118-129) reviewed the various purposes that Article 1F (b) was intended to serve, including (at para. 118) … ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. He further explained this purpose by saying (at para. 119): … [It] indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This … purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum.\n\nI should point out that, unlike Mr Febles, Zrig had not been convicted of any crime, much less served a sentence. Hence, in formulating his understanding of the purposes of Article 1F (b), Décary J.A. was not addressing the specific question at issue in the present appeal, namely, whether Article 1F (b) applies to a refugee claimant who has completed a sentence for a crime which, if committed in Canada, is punishable by a maximum of at least 10 years’ imprisonment, but who poses no danger to the public.", - "current_to": "2012-12-07", + "text": "The appellants are Olga Medovarski and Julio Esteban. Ms. Medovarski was sentenced to two years of imprisonment for criminal negligence causing death while driving a car when intoxicated. Mr. Esteban was sentenced to four years in prison for conspiracy to traffic cocaine. Both were ordered deported. Medovarski and Esteban each appealed to the Immigration Appeal Division of the Immigration and Refugee Board and their removal orders were automatically stayed. Both of those appeals were discontinued as a result of the transitional provisions of the IRPA . In each case the trial judge set aside the decision to discontinue the appeal: [2003] 4 F.C. 227, 2003 FCT 634; 237 F.T.R. 264, 2003 FC 930. In both cases the majority of the Federal Court of Appeal granted the Minister’s appeal, holding that the IRPA ’s transitional provisions intended to deny a right of appeal in the case of an automatic stay: [2004] 4 F.C.R. 48, 2004 FCA 85, and [2004] F.C.J. No. 1892 (QL).\n\nI conclude, as did the majority of the Federal Court of Appeal, that “granted a stay” indicates only actively granted stays, and s. 196 of the IRPA therefore removes the appellants’ right to appeal the order for their removal for serious criminality. The applicable principles of statutory interpretation permit no other conclusion. The appellants’ argument that this result is unfair does not displace this conclusion. The section, properly interpreted, establishes that Parliament intended to deny a right of appeal to persons in the appellants’ circumstances. Accordingly, I would dismiss the appeals. 2. Legislation", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-19", + "id": "scc-2284-3", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 43–45", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 4–6", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "It is thus clear from Zrig that, even before Jayasekara was decided, the Court had disavowed the holding in Chan that Article 1F (b) only extends to preventing a refugee claimant from avoiding extradition. Jayasekara hammered another nail into Chan’s coffin by deciding that Article 1F (b) does not cease to apply because the claimant has been convicted of a serious crime and has completed the sentence. This conclusion had been foreshadowed by Décary J.A. in Zrig, where he said (at para. 129) that Article 1F (b) enabled a state to exclude perpetrators of serious crimes, whether or not they had been convicted and served the sentences imposed on them.\n\nFurther, by excluding facts “extraneous to the facts and circumstances underlying the conviction” from the factors to be considered in assessing the seriousness of the crime, the Court in Jayasekara in effect overruled the holding in Chan that Article 1F (b) does not exclude a claimant who has completed his sentence, unless, perhaps, the claimant poses a danger to the public in Canada.\n\nI am willing to assume for present purposes that the Court in Jayasekara erred in saying that statutory amendments had undermined the conclusion in Chan that a wider reading of Article 1F (b) was inconsistent with the scheme of the statute. Nonetheless, this error is an insufficient basis for finding that the decision in Jayasekara was wrongly decided and should not be followed. Having approved the multiple purposes of Article 1F (b) that Décary J.A. identified in Zrig and having reviewed international jurisprudence, the Court clearly intended to restate the applicable law. In these circumstances, the error alleged is not material. In the light of Zrig and Jayasekara, it is clear that Chan is no longer good law.", - "current_to": "2012-12-07", + "text": "The transitional provisions of the IRPA include ss. 192 and 196: 192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board. 196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.\n\nSection 64 of the IRPA expressly removes a right to appeal for those inadmissible on the grounds of serious criminality: 64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.\n\nThe appellants, Medovarski and Esteban, fall within the scope of the current s. 64 which alters the legislative regime to ensure that they have no right of appeal under the IRPA .", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-20", + "id": "scc-2284-4", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 46–48", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "para 7", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "Nor do I agree with Mr Febles’ second ground for saying that Jayasekara was wrongly decided, namely that the cases cited by the Court in Jayasekara do not support the propositions in paragraph 44 of the reasons. In my view, only one of those cases (Miguel-Miguel v. Gonzales, 500 F.3d 941) was arguably not directly on point. This is not a basis on which Jayasekara can be said to have been wrongly decided. (c) Interpreting Article 1F (b)\n\nThis is sufficient to dispose of the appeal. Nonetheless, because the parties have fully canvassed the meaning of Article 1F (b) as it appears in IRPA, and the issue is important, I shall address Mr Febles’ broader argument that Jayasekara should not be followed because it rests on a fundamental misunderstanding of the purposes of Article 1F (b) and renders incoherent the scheme of IRPA with respect to criminality.\n\nMr Febles’ argument is that Article 1F (b) applies first and foremost to refugee claims by fugitives from justice in the country where they are suspected of having committed a serious non-political crime. It was intended to apply only exceptionally to those who have completed their sentence, that is, when they pose a continuing danger to the receiving state.", - "current_to": "2012-12-07", + "text": "However, the appellants argue that since they filed a notice of appeal, which resulted in the removal order being automatically stayed pursuant to s. 49(1)(b) of the former Act, their appeal should not be discontinued under s. 196. 49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed . . . (b) in any case where an appeal from the order has been filed with the Appeal Division, until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned; . . . (1.1) Subsection (1) does not apply to (a) a person residing or sojourning in the United States or St. Pierre and Miquelon who is the subject of a report made pursuant to paragraph 20(1)(a); or (b) a person who has been determined to be not eligible to make a claim to be a Convention refugee by reason of paragraph 46.01(1)(b) and who is to be removed to a country with which the Minister has entered into an agreement under section 108.1 for sharing the responsibility for examining refugee claims. (The relevant provisions of the IRPA and its predecessor statute are found in the Appendix.) 3. Analysis", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-21", + "id": "scc-2284-5", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 49–51", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 8–9", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "This position is supported by the United Nations High Commissioner for Refugees, (UNHCR) Guidelines on International Protection: Application of Exclusion Clause: Article 1F of the Convention relating to Refugees, (HCR/GIP/03/05, 4 September, 2003) (Guidelines). Paragraph 23 of the Guidelines states that a claimant’s expression of regret for the crime may be considered in determining whether exclusion is justified. The UNHCR’s Handbook on Procedures and Criteria for determining Refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979) also indicates that Article 1F (b) was intended to protect receiving states from having to afford refugee protection to dangerous criminals: see paras. 148 and 157.\n\nThese documents are not determinative of the interpretation of the Convention. In my view, on the basis of the text of Article 1F (b), its known purposes, the scheme of IRPA, and international jurisprudence, Article 1F (b) should be interpreted as excluding rehabilitation and present dangerousness from the assessment of the seriousness of a crime committed by a refugee claimant before coming to Canada. (i) text\n\nArticle 1F (b) applies to “a serious crime of a non-political nature”. It is drafted in very broad terms. Unlike other provisions of IRPA, Parliament has not expressly limited the application of the Article to claimants who pose a current danger to the Canadian public. Courts should normally avoid an interpretation of legislation that requires words to be read into it: R. v. McIntosh, [1995] 1 S.C.R. 686 at para. 26; and see S. v. Status Appeals Authority, [1998] 2 NZLR 291 (CA) applying this interpretative principle to Article 1F (b).", - "current_to": "2012-12-07", + "text": "The words of this statute, like any other, must be interpreted having regard to the object, text and context of the provision, considered together: E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. In interpreting s. 196 to determine whether it eliminates appeals for permanent residents for whom a stay from an order for removal had been granted, I consider the purpose of the IRPA and its transitional provisions, the French and English text of s. 196, the legislative context of s. 196, and the need to interpret the provision to avoid an absurd, illogical or redundant result. Finally, I deal with concerns about unfairness to the appellants caused by the transition to the new IRPA . 3.1 Purpose of the Section 196 Transitional Provisions\n\nThe IRPA enacted a series of provisions intended to facilitate the removal of permanent residents who have engaged in serious criminality. This intent is reflected in the objectives of the IRPA , the provisions of the IRPA governing permanent residents and the legislative hearings preceding the enactment of the IRPA .", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-22", + "id": "scc-2284-6", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 52–55", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 10–11", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, the ordinary meaning of the text of Article 1F (b) is that whether a crime is serious for exclusion purposes is to be determined on the basis of the facts listed by this Court in Jayasekara. The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public. (ii) purposes\n\nThe interpretation of statutory language must always be considered in light of the purposes of the provision in question. However, when the meaning of a statute seems clear and unequivocal from its text, statutory purpose may be less important in the interpretative exercise, although “the court must always seek to read the provisions of an Act as a harmonious whole”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10.\n\nMr Febles’ central argument is that because he has served his sentence, and is therefore not a fugitive from justice in the United States, the only purpose of Article 1F (b) relevant to the facts of this case is the protection of the public in Canada from currently dangerous criminals.\n\nAccordingly, he says, the RPD could only have found that he was excluded from refugee status after considering whether he was rehabilitated and currently posed a danger to the public in Canada. An interpretation of Article 1F (b) to include non-fugitives who are rehabilitated and pose no danger to the host state would, he argues, be inequitable.", - "current_to": "2012-12-07", + "text": "The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1) (i) of the IRPA versus s. 3(j) of the former Act; s. 3(1) (e) of the IRPA versus s. 3(d) of the former Act; s. 3(1) (h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.\n\nIn keeping with these objectives, the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA , s. 36(1) (a). If they have been sentenced to a prison term of more than two years then they are denied a right to appeal their removal order: IRPA , s. 64 . Provisions allowing judicial review mitigate the finality of these provisions, as do appeals under humanitarian and compassionate grounds and pre-removal risk assessments. However, the Act is clear: a prison term of over six months will bar entry to Canada; a prison term of over two years bans an appeal.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-23", + "id": "scc-2284-7", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 56–58", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 12–14", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "I do not agree. In my view, Mr Febles’ argument oversimplifies the purposes underlying Article 1F (b). In Jayasekara, Létourneau J.A. quoted with approval (at para. 28) the description of the various purposes of Article 1F (b) identified by Décary J. A. in Zrig, which I have set out at paragraph 41 of these reasons.\n\nDécary J.A. was not, of course, dealing with the issue raised by the present appeal. It is not altogether clear whether he was of the view that the purposes of Article 1F (b) requires a discrete consideration of the claimant’s present dangerousness, or whether he considered that the dangerousness of a claimant was inherent in the nature of the crime committed.\n\nHowever, the issue now before us has recently been addressed by the European Court of Justice and the German Federal Administrative Court in a case involving a refugee claimant who had not completed his sentence in Turkey before he went to Germany and claimed refugee status. The Courts stated that Article 1F (b), which is incorporated into the law of the European Union by Directive 2004/83/EC, does not require that a refugee claimant with a serious criminal conviction must also pose a present danger to the receiving state. Because international law should be interpreted as uniformly as possible, this Court should attach significant weight to pronouncements by senior courts in other jurisdictions on the very issue that is before us.", - "current_to": "2012-12-07", + "text": "In introducing the IRPA , the Minister emphasized that the purpose of provisions such as s. 64 was to remove the right to appeal by serious criminals. She voiced the concern that “those who pose a security risk to Canada be removed from our country as quickly as possible” (Standing Committee on Citizenship and Immigration, Evidence, May 8, 2001).\n\nIn summary, the provisions of the IRPA and the Minister’s comments indicate that the purpose of enacting the IRPA , and in particular s. 64, was to efficiently remove criminals sentenced to prison terms over six months from the country. Since s. 196 explicitly refers to s. 64 (barring appeals by serious criminals), it seems that the transitional provisions should be interpreted in light of these legislative objectives.\n\nThe appellants respond by suggesting transitional provisions are not to be interpreted with the legislative purpose in mind. Medovarski relies on the statement of Noël J. in Canada v. Trade Investments Shopping Centre Ltd., [1993] 2 C.T.C. 333 (F.C.T.D.), where Noël J. held that “[t]ransitional provisions do not lend themselves to the scrutiny of an overly strict interpretation” and that transitional provisions “are not adopted as part of a coherent legislative plan” (p. 340). Noël J., Medovarski submits, concluded that transitional provisions are “ad hoc provisions the sole purpose of which is to ensure that the particular provision of substantive law which they accompany is introduced in an equitable manner” (p. 340).", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-24", + "id": "scc-2284-8", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 59", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 15–17", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "Thus, in B (Area of Freedom, Security and Justice), [2010] EUECJ C-57/09 (B), the European Court wrote (at para. 104): … the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State. [Emphasis added]", - "current_to": "2012-12-07", + "text": "With respect, the argument rests on a selective reading of Noël J.’s words. He did not hold that transitional provisions attract special rules of interpretation. Rather, he affirmed that in statutory interpretation, the search is always for the intention of the legislator, and where legislative purpose is relevant to a transitional provision, as here, it should be considered. He stated, at p. 337: “In each of these cases, the scope of a transitional provision must be determined from its wording, the nature of the provision of substantive law which it has the effect of suspending and the specific situation which Parliament sought to correct by enacting it.”\n\nThe appellants also argue that Noël J.’s statement that the purpose of transitional provisions is to ensure equitable treatment, means that their particular circumstances must be considered in applying s. 196 of the IRPA . They argue that equitable treatment in their cases favours preserving their right of appeal under s. 196, given their reliance on that right, and their compelling personal circumstances.\n\nThis argument confuses broad equitable outcome with equitable treatment having regard to the different schemes of the two successive statutes. Transitional provisions are enacted to catch those who fall between the cracks created by two pieces of legislation. They ensure that these individuals are not left in legal limbo, uncertain of their rights and with no applicable law. This is the equitable treatment to which Noël J. refers, not a guarantee of an equitable outcome. 3.2 The Text of Section 196", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-25", + "id": "scc-2284-9", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 60", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 18–19", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "The German Federal Administrative Court (BVerwG 10 C 48.07 OVG 8 A 2632/06.A, October 14, 2008), which had referred B to the European Court, delved deeper into the purposes underlying Article 1F (b) by examining its legislative history. Thus, it wrote (at paras. 29-30): [The exclusion clauses] are intended to protect refugee status from abuse, by keeping it from being granted to undeserving applicants. … According to the Travaux Préparatoires [of the Convention], the fundamental difference between reasons for exclusion – tied to previous personal misconduct – and the exceptions from the non-refoulement imperative – intended to protect the host state – was evident in the deliberations. In the case of the exclusion clauses, the deciding factor for the representatives of the states was not whether the refugee currently posed a danger, but the distinction between ‘bona fide’ and criminal refugees. … The group of persons covered by the exclusion clauses because of their misconduct, was not to be set on a par with ‘bona fide refugees.’ The intent was to prevent refugee status from being discredited by including criminals in the group of recognised refugees (‘refugees whose actions might bring discredit on that status’…). There is no support in either the background materials to the Geneva Refugee Convention or the international practice of nations for the UNHCR’s opinion that the aim and purpose of considering a serious non-political crime a reason for exclusion is to protect the community of a receiving country from the danger as admitting a refugee who has committed a serious common crime. [Emphasis added]", - "current_to": "2012-12-07", + "text": "The next step is to consider the terms of s. 196. The Minister and majority of the Federal Court of Appeal conclude that the use of the term “granted” indicates an actively ordered, as opposed to an automatic stay. This is supported by the definition of the term “grant” in the Concise Oxford English Dictionary (11th ed. 2004) which defines it as: “give (a right, property, etc.) formally or legally to . . . legal conveyance or formal conferment” (p. 620). This definition supports a deliberate act. The English version of s. 196 suggests that it applies only to stays actively granted. This said, it is possible to argue, for instance, that statutes can “grant” a right of appeal and that consequently the English version of s. 196 is not as clear as the Minister contends.\n\nAgainst this, the appellants raise the French version of s. 196, the meaning of which is even less clear. The French text of s. 196 states: 196. Malgré l’article 192, il est mis fin à l’affaire portée en appel devant la Section d’appel de l’immigration si l’intéressé est, alors qu’il ne fait pas l’objet d’un sursis au titre de l’ancienne loi, visé par la restriction du droit d’appel prévue par l’article 64 de la présente loi.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-26", + "id": "scc-2284-10", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 61–63", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 20–22", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "The Court stated its conclusion succinctly (at para. 28): Mere ‘unworthiness for protection’ on the basis of prior acts suffices for the application of the exclusion clauses; it is not necessary that the foreigner should still pose such dangers as he manifested in his previous conduct.\n\nI agree that it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice. However, I am less sure than the Courts in B that the Travaux Préparatoires conclusively demonstrate that the drafters intended to exclude other refugee claimants with a serious criminal record, even though they were rehabilitated and not a danger. Much of the discussion involved the definition of the crimes that would exclude a claimant from refugee status, and the concern of the United Kingdom Delegate that individuals who had committed a minor offence should not be excluded. On the other hand, I do not see in the Travaux Préparatoires evidence of an intention on the part of the Delegates only to exclude from refugee status criminals convicted of a serious crime who have served their sentence if they remain dangerous.\n\nI conclude, therefore, that the purposes underlying Article 1F (b) do not so clearly limit its intended scope to protecting the state of refuge from currently dangerous criminals as to warrant an interpretation that is markedly narrower than the ordinary meaning of the text. (iii) statutory context", - "current_to": "2012-12-07", + "text": "It is argued that the French version broadly applies to all appeals that are not the “objet” of a stay, including statutory stays. However, again the matter is not entirely clear. “[L]’objet d’un sursis au titre de l’ancienne loi” is broader and more passive than the English version, which refers to “grant[ing] a stay”. The appellants argue that beneficiaries of automatic stays under the old Act are “objets” of a stay. Again, however, the matter is not entirely clear. On this interpretation it can be argued that the condition imposed by s. 196 would have little meaning (see below). Further, the companion s. 197 refers to “an appellant who has been granted a stay under the former Act” who “breaches a condition of the stay”. It uses the same language as s. 196. But s. 197 can only refer to an actively ordered stay since conditions are not imposed in an automatic stay, suggesting that s. 196 refers to an actively ordered stay.\n\nThe result is that we are dealing with an English version which arguably applies only to actively granted stays, although admitting of ambiguity, and a French version which arguably applies to all stays, whether statutory or granted, although again admitting of ambiguity.\n\nOther uses of the word “stay” in the old and new Acts provide little assistance; the term is used in a variety of different ways depending on the context. 3.3 Principles of French and English Statutory Interpretation", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-27", + "id": "scc-2284-11", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 64–66", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 23–24", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "Mr Febles argues that a theme running through IRPA is that the adverse consequences that flow from serious criminality can be mitigated if the claimant satisfies the MCI that she is rehabilitated. Thus, he says, it would be inconsistent with the statutory scheme of IRPA to interpret Article 1F (b) as excluding from refugee status those who have committed serious crimes outside Canada, regardless of how long ago the crimes were committed or whether they are rehabilitated and currently pose no danger to the public.\n\nThe problem with this argument, in my view, is that it pays insufficient attention to the different purposes served by the provisions in question. A claim is ineligible even to be referred to the RPD for adjudication if the claimant is inadmissible for serious criminality by virtue of a conviction outside Canada and the Minister is of the opinion that the claimant is a danger to the public in Canada: IRPA, paragraphs 101(1)(f), and (2)(b). A purpose of this provision is to enable the speedy removal from Canada of dangerous persons: Harris v. Canada (Minister of Citizenship and Immigration), 2001 FCA 235, [2001] 4 F.C. 495 at para. 28.\n\nThere is no inconsistency between a CBSA officer’s decision not to seek an opinion from the MCI on whether Mr Febles’ claim was ineligible to be referred to the RPD because of his present dangerousness, and the decision of the MPSEP to intervene at the RPD to argue that Article 1F (b) excludes Mr Febles from the refugee definition because of his convictions. The tests for ineligibility and exclusion are simply not the same.", - "current_to": "2012-12-07", + "text": "There is some conflict in the lower courts and between the parties as to the approach that should be adopted with respect to conflicting French and English versions of legislation. However, this dispute was addressed and resolved by this Court in R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6, supported by earlier decisions, particularly Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62. These cases, while not cited by the Federal Court of Appeal, guide the analysis of bilingual statutes.\n\nIn interpreting bilingual statutes, the statutory interpretation should begin with a search for the shared meaning between the two versions: P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327. In Daoust, Bastarache J. held for the Court that the interpretation of bilingual statutes is subject to a two-part procedure.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-28", + "id": "scc-2284-12", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 67–69", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 25–28", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "Dangerousness to the Canadian public is also relevant under IRPA’s provisions on pre-removal risk assessment. Thus, under the statutory provisions relevant to the present case, a claim for protection by Mr Febles, a person inadmissible by reason of serious criminality, would be considered by the MCI on the basis of the risks set out in section 97 of IRPA, and whether he is a danger to the public: paragraphs 112(3)(b) and 113(d)(i). Thus, protecting the public from convicted criminals who still pose a danger to Canada may trump a claim for protection.\n\nIf an application by Mr Febles for protection were allowed on a PRRA, on the ground that the personal risks that he would face if returned outweighed the risk to the Canadian public if he remained, his removal would be stayed: paragraph 114(1)(b). Further, section 7 of the Canadian Charter of Rights and Freedoms (Charter) will normally also prevent the MCI from removing an individual to a country where their Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 58.\n\nApplying for and obtaining a stay of removal from the MCI under the PRRA provisions may not be as satisfactory to Mr Febles on grounds of process and substance as an application to the RPD for the grant of refugee protection and the rights attached to that status. Nonetheless, protection would comply with the non-refoulement principle for those who are excluded from refugee status for serious criminality, but if removed are at risk of death, torture, cruel and unusual treatment or punishment, or the deprivation of other rights guaranteed by section 7 of the Charter.", - "current_to": "2012-12-07", + "text": "First, one must apply the rules of statutory interpretation to determine whether or not there is an apparent discordance, and if so, whether there is a common meaning between the French and English versions. “[W]here one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning”: Schreiber, at para. 56, per LeBel J. Schreiber concerned a discrepancy between the French version of s. 6 (a) of the State Immunity Act , R.S.C. 1985, c. S‑18 , which stated that the exception to state immunity is narrowly “décès” or “dommages corporels”, compared to the broader English “death” or “personal injury”. Given the conflict between the two provisions the Court adopted the clearer and more restrictive French version. The common meaning is the version that is plain and not ambiguous. If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version: Daoust, at paras. 28-29.\n\nSecond, one must determine if the common meaning is consistent with Parliament’s intent: Daoust, at para. 30.\n\nI now turn to the application of these principles to the facts in this case.\n\nIf the English version of s. 196 is interpreted as applying only to actively granted stays, and if the French version is read as referring to all stays, including automatic ones, the two versions are inconsistent. One then looks for the common meaning, which is normally the narrower meaning. In this case, the narrower version is the English version of s. 196. This suggests that the English meaning prevails, and the provision is confined to actively granted stays.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-29", + "id": "scc-2284-13", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 70–73", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 29–32", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "The availability of protection under the PRAA provisions for non-dangerous criminals thus goes a long way to answering Mr Febles’ argument that it is inequitable to exclude individuals from refugee protection on the basis of their criminal record and the surrounding facts without any consideration of whether they are currently dangerous.\n\nMr Febles also argues that the broad interpretation of Article 1F (b) is inconsistent with the provision that individuals are not inadmissible under subsection 36(1) of the IRPA if they satisfy the MCI that they are rehabilitated and meet the criteria prescribed in paragraph 36(3)(c). It suffices to say that the purposes served by the inadmissibility provisions are different from those of Article 1F (b).\n\nFor example, one reason for the exclusion of claims for refugee protection by those who have committed serious crimes appears to be to protect the integrity of refugee status, a purpose for which an assessment of their current dangerousness is irrelevant. In addition, as already noted, those excluded from refugee status on the ground of serious criminality may still be permitted to remain in Canada if facing any of the specified risks in the country to which they would otherwise be removed.\n\nIn summary, there is, in my view, no inconsistency between a broad interpretation of Article 1F (b) and other provisions of the IRPA dealing with criminality that would warrant interpreting the broad language of Article 1F (b) in the limited manner urged by Mr Febles. The scheme of IRPA suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly. G. CONCLUSIONS", - "current_to": "2012-12-07", + "text": "If both the English and French versions are seen as ambiguous, the result is the same. One reconciles them at the first step by finding the common meaning, which again is the narrower meaning.\n\nThe final step asks whether the results comport with Parliament’s intent. Here they do. The narrower interpretation accords with Parliament’s general object of abolishing appeals where a permanent resident has been found inadmissible on the grounds of serious criminality and is sentenced to a prison term of over two years, while preserving appeals in cases where the merits were such that a stay is ordered. 3.4 Avoidance of Redundancy\n\nAs we have seen, consideration of the purpose and language of s. 196 tend to suggest that it was intended to apply only to actively granted stays. This conclusion is reinforced by the absurd effect of the interpretation advocated by the appellants. If s. 196 applies to automatic stays, then it effectively becomes redundant and is reduced to an essentially meaningless statutory provision.\n\nThe appellants’ interpretation results in three related problems.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-30", + "id": "scc-2284-14", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 74–77", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 33–34", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "For these reasons, I would dismiss the appeal and answer the certified question as follows. Question: When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue? Answer: No. “John M. Evans” J.A. “I agree K. Sharlow J.A.” STRATAS J.A. (Concurring Reasons)\n\nI wish to comment on my colleague’s discussion of the standard of review (paragraphs 22-25 of his reasons). In particular, I wish to address the suggestion that the need for uniformity in the interpretation of Article 1F (b) is a factor in favour of correctness review.\n\nWorld-wide uniform interpretations of the provisions in international conventions may be desirable. However, that depends on the nature of the provision being interpreted and the quality and acceptability of the interpretations adopted by foreign jurisdictions. For example, foreign interpretations may not always embody values and principles to which we subscribe. I do not read paragraph 4 of Jayasekara, supra as saying something different on this.\n\nIn particular cases, our courts are well-placed to assess whether their decisions should conform to foreign decisions. But some of our tribunals are equally well-placed to assess that – sometimes even better-placed – armed as they are with specialized understandings, policy appreciation, and expertise. In some cases, reasonableness review, not correctness review, may be warranted.", - "current_to": "2012-12-07", + "text": "First, s. 192 provides that appeals are continued “[i]f a notice of appeal has been filed”. Section 49(1)(b) of the former Act automatically stayed the execution of a removal order once the appeal has been filed. This would mean that the appellants’ removal orders were automatically stayed by the simple act of filing an appeal. They argue that this should result in their appeals being continued pursuant to s. 192 of the IRPA . However, s. 196 states that “[d]espite section 192, an appeal made to the Immigration Appeal Division . . . shall be discontinued if the appellant has not been granted a stay”. Since the appellant has already automatically been granted a stay under s. 49(1)(b), requiring that a stay be granted for the operation of s. 196 would make no sense since an automatic stay is already in place. Further, the use of “if” or “si” in s. 196 creates a condition. If the appellants’ interpretation is accepted then there is no condition to satisfy since every appeal pending before the IAD would be continued. Therefore, the automatic stay imposed with the filing of the appeal cannot be enough; more is needed to give meaning to s. 196 and the conditional phrase, “if the appellant has not been granted a stay”.\n\nSecond, the appellants’ argument leads to the absurdity of concluding that Parliament intended to eliminate appeals for inadmissible people outside the country, while allowing appeals to proceed for inadmissible persons who are in the country. Section 49(1) applies only to removal orders, and hence only to people within the country. This leaves the unanswered question: why would Parliament create a broad exemption for persons in the country yet accord none to similar persons outside the country?", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-37663-31", + "id": "scc-2284-15", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 78–81", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 35–37", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.\n\nIn the end, the choice of standard of review makes no practical difference in this case: ● Reasonableness review. The cogent reasons offered by my colleague amply demonstrate that the RPD’s interpretation of Article 1F (b) is well within the range of the acceptable and defensible and, therefore, passes muster under reasonableness review. ● Correctness review. The standard of review was not specifically addressed in Jayasekara, supra, but I agree that the reasoning in it smacks of correctness review. If, as my colleague suggests, the standard of correctness review is to be adopted in this case in accordance with paragraph 62 of Dunsmuir, supra, his reasoning amply demonstrates the correctness of the RPD’s decision.\n\nFor this reason, I agree with the Minister’s submission that we need not determine the standard of review in this case.\n\nSubject to these comments, I concur with my colleague’s reasons. “David Stratas” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2012-12-07", + "text": "Third, the appellants’ interpretation appears to result in a redundancy inconsistent with the purpose of the Act. As just discussed, s. 49(1)(b) of the former Act imposes an automatic stay when an appeal is filed. Thus the simple act of filing an appeal would exempt the appeal from being discontinued by s. 196 of the IRPA . Thus there is little left for s. 196 to discontinue other than appeals that have been granted to s. 49(1.1) appellants. These people are a subset of serious criminals in the system. This raises the question of why Parliament would confine the provision to a subset, when its legislative purpose was concerned with serious criminals generally. As Evans J.A. stated, there is no cogent policy rationale for such a distinction (para. 43).\n\nThe appellants counter with their own redundancy argument, which in the end has little merit. They argue that the Minister’s interpretation of s. 196 would render the provision redundant because under the former Act, the only way that a deliberate stay could be “granted” was via s. 73(1)(c). This was one way the IAD could “dispose” of an appeal. However, both ss. 192 and 196 refer to an appeal in progress as opposed to an appeal that has been “disposed” of. As a result, according to the appellants, s. 196 cannot apply to a deliberate stay since under s. 73(1)(c) there is no such thing as a stay granted in an ongoing appeal.\n\nThis argument is answered simply by pointing out that granting a stay under s. 73(1)(c) was merely a temporary measure, and the IAD retained an ongoing supervisory jurisdiction. Its decision was not final: Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577. The appeal would only truly be disposed of, or terminated, when the appeal was allowed or dismissed.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-36253-1", + "id": "scc-2284-16", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 1–2", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 38–41", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "This is an appeal from a decision of Strayer J. of the Federal Court (judge) who dismissed the appellant’s application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board). The judge certified the two following questions for analysis by this Court: 1. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? 2. If the answer to question 1 is affirmative, if a person is forced to leave the country where the crime was committed prior to the completion of his sentence, does this have the effect of deeming the sentence to have been served? In application of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the exclusion clause in Article 1F(b) of the Convention, the Board found that the appellant was not a Convention refugee or a person in need of protection. In addition, the Board ruled that the appellant was not credible and did not meet the criteria of the Convention. There is no appeal from this second finding of the Board. From that perspective, the appeal is moot.\n\nHowever, a person who, pursuant to section 98 of the IRPA, is excluded as a Convention refugee on the basis of Article 1F(b) of the Convention, cannot obtain refugee protection. This results from the combined effect of paragraphs 95(1)(c) and 112(3)(c) of the IRPA.", - "current_to": "2008-12-17", + "text": "In the end, the Minister’s claim that the appellants’ interpretation would render the transitional provisions largely redundant and meaningless is persuasive, and the appellants provide no viable counter argument. 3.5 Other Arguments\n\nTo counter the apparent redundancy of s. 196 on their interpretation, the appellants raise a series of practical considerations that they submit should inform the interpretation of s. 196. These normative arguments may suggest an absurdity or legislative intention and inform the context of an enactment. As such, they may be properly considered in interpreting a disputed provision.\n\nThe appellants’ first practical argument is that had they known that their right to appeal would be retroactively removed, they would have proceeded differently in their criminal trials. The two appellants are in different positions in this regard, although Esteban adopts many of Medovarski’s facts to support his case.\n\nMedovarski claims that had she known that she might be denied an appeal by s. 196 (and s. 64), she would have instructed her counsel to bring this fact to the attention of the sentencing judge, in support of a sentence of two years less a day, as opposed to two years. According to her, interpreting s. 196 in a manner which continues her appeal because of the automatic stay remedies this unjust situation. However, s. 64 has caught, or is likely to catch, any number of permanent residents who are or were in prison serving two-year terms at the time the IRPA was passed. They too might have sought two-year sentences less a day had they known that a two-year sentence would remove their right of appeal under the IRPA . Parliament chose not to account for this obvious situation.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-36253-2", + "id": "scc-2284-17", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 3–5", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 42–43", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "Moreover, while that person can still apply to the Minister of Citizenship and Immigration (Minister) for protection if subject to a removal order, he or she cannot obtain permanent resident status. Pursuant to paragraph 114(1)(b) of the IRPA, the Minister’s decision to allow the application for protection merely has the effect of staying the removal order. In view of these consequences on a claimant, I believe that this Court should address the certified questions.\n\nSection 98 of the IRPA and the interpretation to be given to the word “serious” in the terms “serious non-political crime” found in Article 1F(b) of the Convention carry with them an international dimension. As Lord Llyod of Berwick said in T v. Secretary of State for the Home Department, [1996] 2 All ER 865, at p. 891, “in a case concerning an international convention, it is obviously desirable that decisions in different jurisdictions should, so far possible, be kept in line with each other”. For this reason, we requested the parties provide us with additional submissions containing references to the international jurisprudence on this question.\n\nMore specifically, the parties were asked to provide references: a) as to whether the seriousness of a non-political crime within the meaning of Article 1F(b) of the Convention is determined solely by reference to the maximum sentence that can be imposed for the particular crime as provided in the domestic law of the country of refuge; or b) whether, in making the determination, the facts relating to the nature and seriousness of the acts committed may or must be taken into account. The parties were given until November 7, 2008 to complete their submissions.", - "current_to": "2008-12-17", + "text": "The appellants’ second practical argument is that they are left in a worse position than had their cases been dealt with under either Act exclusively. Even though the IRPA removed a right of appeal, the appellants would have had other procedural protections, including an assessment report had they been dealt with entirely under the IRPA : ss. 44(1) and 44(2). Under the former Act, procedures of equitable review were conducted at a later stage via the appeal. Parties were also given notice that the Minister intended to issue a “danger opinion” (which removed a right of appeal) (s. 70(5)) and an opportunity to make submissions. Under the transitional provisions as interpreted by the Minister, the appellants have lost recourse to both the former and the later mechanisms of appeal or review.\n\nThe Minister raises factors which it submits balance the appellants’ concerns. Medovarski will not be deported without an assessment of the risks she might face in her home country: IRPA , ss. 112(1) , 113 (d), 97 and 114(1) (b). Medovarski and Esteban can always appeal on humanitarian and compassionate grounds although they will have to do this outside the country: IRPA , s. 25(1) . Finally, they retain their right to seek leave and judicial review of the removal order and other decisions leading to it: s. 72 of the IRPA . It remains true that the appellants were left with fewer options than had they proceeded exclusively under either Act. However, this alone does not suffice to negate the inference flowing from other considerations that Parliament intended this result.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-36253-3", + "id": "scc-2284-18", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 44–46", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "Before stating the facts, I reproduce the relevant provisions: Convention Article 1. Definition of the term “refugee” F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. Article premier. -- Définition du terme « réfugié » F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. [Emphasis added] IRPA PART 1 - IMMIGRATION TO CANADA Division 4 - Inadmissibility Serious criminality 36.", - "current_to": "2008-12-17", + "text": "The appellants’ third practical argument is that their appeals were discontinued after they had been filed. However, this argument is answered by the fact that the express purpose of the IRPA ’s transitional provisions is to deal with these pending appeals. Section 196 expressly provides that it operates despite s. 192, which is only engaged if a notice of appeal has been filed under the former Act. Thus any unfairness on this account is contemplated by the legislation.\n\nFinally both appellants raise Charter arguments. Medovarski claims that s. 196 violates her s. 7 rights to liberty and security of the person. She claims that deportation removes her liberty to make fundamental decisions that affect her personal life, including her choice to remain with her partner. Medovarski argues her security of the person is infringed by the state-imposed psychological stress of being deported. Medovarski further alleges that the process by which her appeal was extinguished was unfair, contrary to the principles of fundamental justice.\n\nThe most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms .", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-36253-4", + "id": "scc-2284-19", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 47–48", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. PART 2 - REFUGEE PROTECTION Division 1 - Refugee Protection, Convention Refugees and Persons in Need of Protection Conferral of refugee protection 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. … Convention refugee 96.", - "current_to": "2008-12-17", + "text": "Even if liberty and security of the person were engaged, the unfairness is inadequate to constitute a breach of the principles of fundamental justice. The humanitarian and compassionate grounds raised by Medovarski are considered under s. 25(1) of the IRPA in determining whether a non-citizen should be admitted to Canada. The Charter ensures that this decision is fair: e.g., Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Moreover, Chiarelli held that the s. 7 principles of fundamental justice do not mandate the provision of a compassionate appeal from a decision to deport a permanent resident for serious criminality. There can be no expectation that the law will not change from time to time, nor did the Minister mislead Medovarski into thinking that her right of appeal would survive any change in the law. Thus for these reasons, and those discussed earlier, any unfairness wrought by the transition to new legislation does not reach the level of a Charter violation.\n\nEsteban asserts that Charter values should inform the interpretation of s. 196. Charter values only inform statutory interpretation where “genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute”: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14. Both readings are not equally in accordance with the intention of the IRPA . Thus it is not necessary to consider Charter values in this case. 3.6 Conclusion on the Meaning of Section 196", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-36253-5", + "id": "scc-2284-20", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 51", + "act_short": "Medovarski", + "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", + "marginal_note": "paras 49–51", + "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", + "part": "Supreme Court of Canada", "division": "", - "text": "A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Exclusion — Refugee Convention 98.", - "current_to": "2008-12-17", + "text": "Despite the fairness arguments raised by the appellants, I conclude that the interpretation of s. 196 they suggest leads to a legislative redundancy and is inconsistent with the objectives of the IRPA . This conclusion finds further support in the text of s. 196 and principles of interpretation of bilingual statutes. 4. Conclusion\n\nSection 196 of the IRPA , properly interpreted, applies only to actively granted stays. The appellants were never the beneficiaries of actively granted stays. Therefore, s. 196 does not apply to them and their right to appeal their orders for removal were not preserved.\n\nI would dismiss the appeals with costs to the respondent.", + "current_to": "2005-09-30", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 539", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" }, { - "id": "fca-36253-6", + "id": "scc-2273-1", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 1–4", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. … Ineligibility 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). Serious criminality (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. … Division 3 - Pre-removal Risk Assessment Protection Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).", - "current_to": "2008-12-17", + "text": "In this appeal, this Court is required to determine whether the Federal Court of Appeal erred in overturning a decision of the Immigration and Refugee Board (Appeal Division) that had found the respondent inadmissible to Canada pursuant to ss. 27(1)(a.1)(ii), 27(1)(a.3)(ii), 27(1)(g) and 19(1)(j) of the Immigration Act, R.S.C. 1985, c. I‑2 (now replaced by the Immigration and Refugee Protection Act , S.C. 2001, c. 27 ).\n\nThe outcome of the appeal hinges on the characterization of a speech delivered by the respondent Léon Mugesera in Rwanda in the Kinyarwandan language. The speech triggered a series of events that have brought the Government of Canada and Mr. Mugesera to this Court.\n\nIn short, the content of the speech led the Rwandan authorities to issue the equivalent of an arrest warrant against Mr. Mugesera, who fled the country shortly thereafter. He found temporary refuge in Spain. On March 31, 1993, he applied for permanent residence in Canada for himself, his wife, Gemma Uwamariya, and their five children, Irenée Rutema, Yves Rusi, Carmen Nono, Mireille Urumuri and Marie‑Grâce Hoho. After the application was approved, the Mugesera family landed in Canada in August 1993.\n\nIn 1995, the Minister of Citizenship and Immigration became aware of allegations against the respondent and commenced proceedings under s. 27 of the Immigration Act. A permanent resident of Canada may be deported if it is determined, inter alia, that before or after being granted permanent residency, the individual committed criminal acts or offences. In this case, the speech was alleged to constitute an incitement to murder, hatred and genocide, and a crime against humanity.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-7", + "id": "scc-2273-2", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 5–6", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "… Restriction (3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1). Consideration of application 113. Consideration of an application for protection shall be as follows: … (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. Effect of decision 114.", - "current_to": "2008-12-17", + "text": "In July 1996, an adjudicator concluded that the allegations were valid and issued a deportation order against Mr. Mugesera and his family. The Immigration and Refugee Board (Appeal Division) (“IAD”) upheld the adjudicator’s decision and dismissed the respondents’ appeal ([1998] I.A.D.D. No. 1972 (QL)). The findings of fact and law were subject to judicial review in the Federal Court – Trial Division (“FCTD”) ((2001), 205 F.T.R. 29, 2001 FCT 460), and then in the Federal Court of Appeal (“FCA”). Décary J.A., writing for the FCA, reversed several findings of fact made by the IAD and reversed the deportation order, concluding that the Minister had not met his burden ([2004] 1 F.C.R. 3, 2003 FCA 325, with supplementary reasons (2004), 325 N.R. 134, 2004 FCA 157). The Minister has now appealed to this Court, and he asks that the IAD’s deportation order be confirmed.\n\nThis appeal raises a number of issues. First, we must consider the standard of review which a reviewing court should apply to findings of fact and conclusions of law. Second, we must apply the appropriate standard of review to determine the facts. This inquiry focuses on the interpretation of the contents of the speech which lies at the heart of these proceedings. Third, having determined the operative facts — what Mr. Mugesera said in the speech — we must apply the law to that speech to determine whether the legal requirements for a deportation order are met. This requires us to consider the provisions of the Immigration Act relating to the applicable standard of proof, and the provisions of the Criminal Code , R.S.C. 1985, c. C-46 , relating to incitement to murder, incitement to hatred, incitement to genocide, and crimes against humanity.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-8", + "id": "scc-2273-3", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 7–11", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. PARTIE 1 - IMMIGRATION AU CANADA Section 4 - Interdictions de territoire Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans. PARTIE 2 - PROTECTION DES RÉFUGIÉS Section 1 - Notions d’asile, de réfugié et de personne à protéger Asile 95.", - "current_to": "2008-12-17", + "text": "For the reasons that follow, we would allow the appeal. The decision of the FCA should be set aside and the decision of the IAD in favour of deportation should be restored. II. Background and Judicial History A. Overview of Rwandan History\n\nThere is no doubt that genocide and crimes against humanity were committed in Rwanda between April 7 and mid-July 1994. Although we do not suggest that there is absolutely no connection between the events, it is important to be mindful that one cannot use the horror of the events of 1994 to establish the inhumanity of the speech of November 22, 1992. The allegations made against Mr. Mugesera must be analysed in their context, at the time of his speech.\n\nIn order to fully understand the content of the speech of November 22, 1992, it is necessary to situate the speech in the historical context in which it was given. “What we have is a speech delivered in a political context, to an audience that is already aware of several facts, but for which we need explanations if we are to follow it clearly” (IAD judgment, at para. 133).\n\nWe will not examine Rwandan history at length but will highlight some key facts and events that are relevant to the disposition of the issues on this appeal. (1) The Political and Ethnic Context\n\nRwanda is a small, extremely hilly country in the Great Lakes region of Central Africa. In 1992 there were three officially recognized ethnic groups living in Rwanda: the Hutu, the Tutsi, and the Twa. The Hutu and the Tutsi were the two major ethnic groups as the Twa represented only about 1 percent of the population.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-9", + "id": "scc-2273-4", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 12", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). […] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne à protéger 97.", - "current_to": "2008-12-17", + "text": "Although there are different explanations regarding the origin of and distinction between the two major ethnic groups, the IAD found that in 1992 a large number of Rwandans apparently believed the theory propagated by the colonists that the Tutsi were a distinct race who originated in Ethiopia. It was also common lore that the Tutsi had invaded and conquered Rwanda and enslaved its inhabitants, the Hutu (IAD judgment, at para. 45). The distinction between the groups was permanently entrenched at the time of colonization and with the introduction of identification cards. The European colonial authorities, first German and then Belgian, favoured the Tutsi and used them to administer the colony.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-10", + "id": "scc-2273-5", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 13–14", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne à protéger (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. […] Irrecevabilité 101.", - "current_to": "2008-12-17", + "text": "In 1959, shortly before the country gained independence, its first political parties were formed. They had ethnic rather than ideological foundations. The major Hutu party, the Parmehutu, won the June 1960 election. With the establishment of the first Republic in 1961, the entire Tutsi political and administrative structure was eliminated. In Rwanda, violence and harassment caused a large number of Tutsi to flee the country, mainly to Uganda. The IAD referred to the 1959‑1961 revolution as the “crucial point of reference for three decades” (para. 49). A cycle of violence emerged. Tutsi in exile made incursions into Rwanda and each attack was followed by reprisals against Tutsi within the country. The IAD, at para. 26, described the situation as follows: Some refugees began to attack Rwanda in 1961 and tried to invade the country about a dozen times. These were the Inyenzi. After each attack, the Tutsi remaining in Rwanda suffered reprisals that were either spontaneous or organized by the authorities. And each time waves of refugees left Rwanda. Some relatively extensive massacres occurred in 1963 (5,000 to 8,000 deaths alone in Gikongoro prefecture). Further disturbances and massacres thrust more large groups into exile. An estimated 600,000 people, essentially Tutsi, left Rwanda between 1959 and 1973. [Footnotes omitted.]\n\nIn the wake of the massacres and of general discrimination in the period between 1963 and 1973, about one half of the Tutsi population left Rwanda (IAD judgment, at para. 49).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-11", + "id": "scc-2273-6", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 15–17", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) – , grande criminalité ou criminalité organisée. Grande criminalité (2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : a) une déclaration de culpabilité au Canada pour une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et pour laquelle un emprisonnement d’au moins deux ans a été infligé; b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada. […] Section 3 - Examen des risques avant renvoi Protection Demande de protection 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).", - "current_to": "2008-12-17", + "text": "On July 5, 1973, General Juvénal Habyarimana seized power in “a coup d’état”. This was the advent of Rwanda’s second Republic. The Mouvement révolutionnaire national pour le développement (“MRND”), a hard-line Hutu political party, became the sole official party. In July 1986, the government declared that the return of refugees was conditional upon their ability to support themselves. Rwanda was not capable of settling the large numbers of refugees who had fled the country. Tutsi refugees were not able to return to Rwanda. This led to the creation of the Rwandan Patriotic Front (“RPF”) in Kampala, Uganda. The RPF consisted of Rwandan refugees and former members of the Ugandan army. The objective of the exiles was to return to Rwanda.\n\nIn 1988, at an international conference of Rwandan refugees held in Washington, the Rwandan government reversed its position and a full right of return was affirmed. A special committee was created to deal with the problem of Rwandan refugees living in Uganda. The committee met a number of times to develop a plan for the return. Although this process created a “dynamic of confrontation” the period was one of relative peace (IAD judgment, at para. 26). (2) The Early 1990s\n\nOn July 5, 1990, President Habyarimana announced a [translation] “political aggiornamento” and his wish to create a multiparty government with a new constitution. In September, a [translation] “national synthesis commission” on political reform was established. It began its work in October 1990.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-12", + "id": "scc-2273-7", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 18–19", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "[…] Restriction (3) L’asile ne peut être conféré au demandeur dans les cas suivants : a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée; b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; d) il est nommé au certificat visé au paragraphe 77(1). Examen de la demande 113. Il est disposé de la demande comme il suit : […] c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98; d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada. Effet de la décision 114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. [Emphasis added] The facts", - "current_to": "2008-12-17", + "text": "The RPF invaded northern Rwanda on October 1, 1990. Mass arrests and the detention of alleged RPF accomplices, 90 percent of whom were Tutsi, followed. The Minister of Justice considered Tutsi intellectuals to be RPF accomplices. Several massacres were perpetrated by the Rwandan army. By the end of October, the Rwandan army had pushed the insurgents back across the Ugandan border. This marked the end of conventional warfare and the beginning of a protracted semi-guerilla war. Between October 1990 and January 1993 approximately 2,000 Tutsi were massacred. There were also reports that hundreds of civilians had been attacked and killed by the RPF.\n\nIn late March 1991, a draft political charter was published along with a preliminary draft constitution. New political parties were created: the Mouvement démocratique républicain (“MDR”), the Parti social-démocrate (“PSD”), the Parti libéral (“PL”) and the Parti démocrate-chrétien (“PDC”). The PL was the only party that was more or less identified with the Tutsi. On April 28, 1991, President Habyarimana announced changes to the MRND: the party’s name was changed to Parti républicain national pour le développement et la démocratie, and members of its central committee would henceforth be elected. A new constitution introducing the multiparty system was adopted on June 10, 1991, and this was followed on June 18 by the promulgation of a new law on political parties.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-13", + "id": "scc-2273-8", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 7–12", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 20–22", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The facts can be summarized as follows. The appellant, Mr. Ruwan Chandima Jayasekara, is a Sri Lankan citizen of Sinahalese ethnicity. He was allegedly targeted in Sri Lanka by the Tamil Tigers. He arrived in the United States in 1998 and lived there without status until 2004.\n\nIn January 2004, he was arrested in New York State on drug charges and pled guilty to the “criminal sale of the controlled substance opium in the third degree” and to criminal possession of marijuana. In March 2004, he was convicted and sentenced to 29 days in jail and a 5 year probation period.\n\nOne month after completing his jail term, he attended an immigration hearing and was issued a voluntary departure order to leave the United States by October 2004.\n\nOn July 5, 2004, he entered Canada and claimed refugee protection. He did not apply to his probation office to obtain permission to leave the jurisdiction of the United States and a warrant for his arrest as an absconder was issued on July 27, 2004. The Board’s decision\n\nThe Board heard the appellant’s refugee claim on April 12 and September 15, 2006. As previously mentioned, it found that he was excluded from refugee protection under section 98 of the IRPA and Article 1F(b) of the Convention because there were serious reasons for considering that he had committed a serious non-political crime outside of Canada and that he had not completed his sentence as he fled the United States during his probation.\n\nMoreover, it found that, even if the appellant was not excludable under Article 1F(b) of the Convention, he did not meet the criteria for either Convention refugee status or as a person requiring protection. These findings based on credibility are not contested.", - "current_to": "2008-12-17", + "text": "In December 1991, Prime Minister Nsanzimana announced the creation of a new government made up entirely of MRND members with the exception of one minister of the PDC. Thousands of people protested against this decision. As a result, negotiations between the MRND and the opposition parties resumed in February 1992. These discussions led to the formation of a multiparty transitional government in April. In response, the MRND militia launched attacks in several parts of the country.\n\nThe RPF had not been included in the initial negotiations, but in May 1992 it occupied a small part of northern Rwanda, which forced the new government to negotiate with it. Three agreements between the government and the RPF were concluded in Arusha: a cease-fire agreement on July 12, a rule of law protocol on August 18, and the initial power-sharing agreement on October 30. The day after the signing of the protocol, there were massacres of Tutsi and moderate Hutu.\n\nOn November 15, 1992, President Habyarimana referred to the Arusha accords as a scrap of paper. Months of escalating violence followed. There were reports of massacres of Tutsi and of political opponents. Nevertheless, the Arusha talks were resumed in March of 1993, and on August 4, 1993 the Government and the RPF signed the final Arusha accords and ended the war that had begun on October 1, 1990.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-14", + "id": "scc-2273-9", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 13–16", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 23–25", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellant sought judicial review before the Federal Court only of his exclusion under section 98 of the IRPA and Article 1F(b) of the Convention. The Federal Court decision\n\nThe judge reviewed the Board’s decision on the standard of reasonableness because, at the core of it, the question of the exclusion under section 98 of the IRPA and Article 1F(b) of the Convention was one of mixed fact and law which involved some degree of discretion: see paragraph 10 of the reasons for judgment.\n\nHe was also of the view that it was reasonable for the Board to conclude that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non-political crime outside the country. He found that conclusion to be reasonable because the offence committed by the appellant would carry a maximum sentence of life imprisonment in Canada. At paragraph 11 of the reasons for judgment he wrote: It was perfectly reasonable for the Board to use as a measurement of a “serious” crime the view which Canadian law takes of that offence, not the seriousness of the penalty imposed in the United States.\n\nWith respect to the certified questions, the judge ruled that the appellant had not completed his sentence in the United States as he voluntarily left that country with most of his five years probation unserved.", - "current_to": "2008-12-17", + "text": "It was in this context of internal political and ethnic conflict that Mr. Mugesera made his speech. At the time, Mr. Mugesera was a well-educated and well-connected man. After receiving part of his higher education and completing a graduate degree in Canada, he returned to Rwanda, where he held teaching and public service positions. He also got involved in local politics. He was an active member of the MRND, the hard-line Hutu party which opposed the Arusha process.\n\nOn November 22, 1992, Mr. Mugesera delivered the speech which lies at the heart of this case. (See Appendix III. Paragraph numbering has been added to the speech for easier reference.) He spoke to about 1,000 people at a meeting of the MRND, at Kabaya in Gisenyi prefecture, just a few days after the speech in which President Habyarimana had described the Arusha agreements as a scrap of paper. As mentioned above, the contents of this speech led to an attempt to arrest Mr. Mugesera and to his flight to Canada, where he found refuge in August 1993. B. The Allegations Against Mr. Mugesera\n\nAfter receiving further information about the activities of Mr. Mugesera in Rwanda, the Minister of Citizenship and Immigration moved to deport the respondent and his family under s. 27 of the Immigration Act. The Minister alleged that the speech constituted an incitement to commit murder (A), an incitement to genocide and to hatred (B), and a crime against humanity (C). The Minister also alleged that by answering “no” on his permanent resident application to the question of whether he had been involved in a crime against humanity, Mr. Mugesera had misrepresented a material fact, contrary to the Act (D). A summary of the Minister’s allegations is attached as Appendix I.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-15", + "id": "scc-2273-10", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 17–18", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 26–27", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Finally, addressing the appellant’s contention that Article 1F(b) of the Convention is inapplicable to persons who have served their sentence abroad before coming to Canada, the judge reviewed the decisions of our Court in Chan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1180 and Zrig v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565. He concluded that the Board was still right to have excluded the appellant under Article 1F(b) of the Convention, even if he were deemed to have constructively served his sentence in the United States. The purpose of Article 1F(b) of the Convention\n\nThe purpose of Article 1F(b) of the Convention was considered by our Court in the Chan and Zrig decisions. Counsel for the appellant submits that Chan is still good and applicable law. He argued that Chan established a general principle that a person who has served his sentence should not be excluded under Article 1F(b) of the Convention.", - "current_to": "2008-12-17", + "text": "At the hearing before this Court, the Minister dropped the allegation of misrepresentation of a material fact. As this allegation would have been the sole basis for a deportation order against the members of Mr. Mugesera’s family, the Minister no longer seeks to deport them. C. The Proceedings Below\n\nThe proceedings before the adjudicator, Pierre Turmel, went on for 29 days and involved 21 witnesses. In his decision of July 11, 1996, the adjudicator ordered the deportation from Canada of Mr. Mugesera, his wife, and their children, who appealed the decision to the IAD. Although a hearing before the IAD is in fact a hearing de novo and the IAD may consider new evidence, the parties agreed that all the evidence at first instance would be filed in full on the appeal. In addition, each of the parties called four witnesses. The hearing lasted 24 days. The IAD found that all the Minister’s allegations were justified and dismissed the family’s appeal.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-16", + "id": "scc-2273-11", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 19–20", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 28", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellant relies upon the following statement of Robertson J.A., at paragraph 4 of the reasons for judgment in Chan: Assuming without deciding that the appellant’s conviction qualifies as a serious non-political crime, it is clear to me that Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country. I rest this conclusion on two grounds. First, obiter comments of Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (writing for the majority) and Justice La Forest in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, fully support this interpretation of Article 1F(b), as do the writings of academic commentators. Second, any other interpretation is in conflict with the statutory scheme set out in the Immigration Act.\n\nIn that case, our Court had to reconcile the terms of Article 1F(b) of the Convention with then subparagraphs 46.01(1)(e)(i) and 19(1)(c.1)(i) of the former Immigration Act, R.S.C. 1985, c. I-2, as amended (former Act).", - "current_to": "2008-12-17", + "text": "Pierre Duquette wrote the main reasons for the IAD’s decision. Based on his interpretation of the speech, he held that the allegations of incitement to murder, genocide and hatred had been established. In his opinion, the allegation of crimes against humanity had also been made out. Mr. Duquette concluded that there was insufficient evidence to find, on a balance of probabilities, that Mr. Mugesera was a member of the death squads, that he participated in massacres, or that the killings committed in Rwanda following the speech were specifically tied to the speech. The other two members of the panel, Yves Bourbonnais and Paule Champoux Ohrt, concurred in part with these reasons, but disagreed with Mr. Duquette’s findings on the allegations that Mr. Mugesera incited others to commit murders and that one or more murders were committed as a result. They concluded, on a balance of probabilities, that murders were committed the day after the speech and that some of them were directly related to the speech. They also found that Mr. Mugesera was an Akazu and death squad member and that he participated in massacres. (The Akazu was a political and business network that was very close to President Habyarimana, and in particular to his wife’s family. The Akazu was also one element of the death squads.) These acts constituted offences under ss. 91(4) of Book I and 311 of Book II of the Rwandan Penal Code, and would also have been crimes under ss. 22 , 235 and 464 (a) of the Criminal Code .", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-17", + "id": "scc-2273-12", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 21", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 29", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "These provisions of the former Act read: Access Criteria 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person … (e) has been determined by an adjudicator to be (i) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, 19. (1) Inadmissible Persons – No person shall be granted admission who is a member of any of the following classes: … (c.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or … except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission as the case may be; Critères de recevabilité 46.01 (1) – La revendication de statut n’est pas receivable par la section du statut si l’intéressé se trouve dans l’une ou l’autre des situations suivantes : […] (e) L’arbitre a décidé, selon le cas : (i) qu’il appartient à l’une des catégories non admissibles visées à l’alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada, 19.", - "current_to": "2008-12-17", + "text": "Mr. Mugesera applied to the Federal Court for judicial review of the IAD’s decision. On May 10, 2001, after a hearing that lasted 14 days, Nadon J. found that there was no basis for allegations C (crimes against humanity) and D (misrepresentation), but that allegations A (incitement to murder) and B (incitement to genocide and hatred) were valid. With regard to the IAD’s analysis of the speech, Nadon J. found that Mr. Duquette’s reasons evinced a painstaking and careful analysis based on the evidence. It was therefore impossible for him to conclude that the interpretation of the speech and the resulting findings of fact were unreasonable. He acknowledged the applicant’s argument that an interpretation other than the one accepted by Mr. Duquette was possible and could have been accepted, but found that this was not a reason to intervene. The applicable principles of judicial review are clear: unless the impugned conclusions are patently unreasonable, the IAD’s findings of fact are entitled to great deference. Nadon J. dismissed the application for judicial review on allegations A and B and allowed it on allegations C and D. In respect of allegation C, he concluded that because Mr. Duquette could not link the speech to murders or massacres, it could not in the circumstances constitute a crime against humanity. He referred the matter back to the IAD for reconsideration on this point of law.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-18", + "id": "scc-2273-13", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 21–24", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 30–31", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) Personnes non admissibles – Les personnes suivantes appartiennent à une catégorie non admissible : […] c.1) celles dont il y a des motifs raisonnables de croire qu’elles ont, à l’étranger : (i) soit été déclarées coupables d’une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d’une loi fédérale, d’un emprisonnement maximum égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu’au moins cinq ans se sont écoulés depuis l’expiration de toute peine leur ayant été infligée pour l’infraction ou depuis la commission du fait; [Emphasis added]\n\nPursuant to section 46.01, a person who was inadmissible to Canada could not have his or her claim determined by the Refugee Division. In other words, he or she was excluded from a refugee hearing before the Refugee Division.\n\nHowever, subparagraph 19(1)(c.1)(i) created an exception to the inadmissibility to Canada of persons convicted outside of Canada for a crime that could be punishable in Canada by a maximum term of imprisonment of ten (10) years or more.\n\nAs a matter of fact, a person convicted of such crimes could still be eligible for refugee protection and have his or her claim determined by the Refugee Division if the Minister was satisfied that that person had rehabilitated himself or herself and that five years had elapsed since the expiration of the sentence imposed or since the commission of the act or omission.", - "current_to": "2008-12-17", + "text": "In the FCA, Décary J.A., who wrote the main reasons for the court, held regarding the allegations of incitement to murder and incitement to genocide and hatred, that the initial decision by the Minister to seek deportation and the decisions of the adjudicator, the IAD and the FCTD were decisively influenced by a 1993 report of the International Commission of Inquiry (“ICI”). The IAD had acted in a patently unreasonable way by relying on the ICI’s findings of fact. The ICI’s conclusions regarding Mr. Mugesera lacked any credibility. The report should not have been taken into consideration.\n\nIn addition, Décary J.A. found that the IAD had made a patently unreasonable error in not accepting the testimony of Professor Angenot, one of Mr. Mugesera’s experts, on the analysis of the speech; Professor Angenot suggested that certain comments made in the speech had been misinterpreted. The FCA took the position that since the speech could be classified as political speech, it had to be accorded wide latitude and substantial protection under s. 2( b ) of the Canadian Charter of Rights and Freedoms . Objectively speaking, if the speech and its context were analysed as a whole, the message of the speech did not incite to murder, hatred or genocide. As to the allegation of crimes against humanity, Décary J.A. found that the speech did not prima facie meet the requirement that the act be part of a widespread or systematic attack against the members of a civilian population for (in this case) reasons relating to ethnic origin. With respect to the situation on November 22, 1992, there was no evidence that the speech was part of a widespread or systematic attack. For this reason, Décary J.A. found that the allegations of crimes against humanity were unfounded. III. Applicable Legislation", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-19", + "id": "scc-2273-14", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 25–27", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 32–35", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "In order to give meaning to the rehabilitation provisions of the former Act, Robertson J.A. found in Chan that Article 1F(b) of the Convention could not be given an interpretation which would have resulted in a blanket exclusion of those who had been found guilty of serious crimes as defined in the Act. Such interpretation would have deprived a claimant of the protection offered by the exception to the inadmissibility rule. I should add, it would have also divested the Minister of his discretionary power under paragraph 19(1)(c.1) of that Act.\n\nIn my respectful view, the decision in Chan stands for the proposition that, under the existing law at the time, which, as we will see, has now been modified by the IRPA, a claimant who was convicted of a serious non-political crime and who served his sentence was not necessarily excluded from a refugee hearing or rendered ineligible to apply for the refugee protection afforded by the Convention. He or she remained entitled to have their refugee claim determined by the Refugee Division if the Minister concluded that the claimant was rehabilitated and was not a danger to the public.\n\nWhile the decision in Chan afforded some protection to a claimant and safeguarded the Minister’s discretion, it did not then, nor does it now, in my respectful view, stand for the proposition that, whatever the circumstances, a country cannot exclude an applicant who was convicted and served his sentence.", - "current_to": "2008-12-17", + "text": "Extracts from the following legislation in force at the relevant time are set out in Appendix II of these reasons: the Immigration Act; the Federal Court Act , R.S.C. 1985, c. F-7 ; the Criminal Code and the Rwandan Penal Code. IV. Issues\n\nOur Court must consider three related issues on this appeal. The first concerns the factual content of the speech and the question of whether the FCA exceeded its jurisdiction by substituting its own assessment of the evidence and failing to show due deference to the IAD’s findings of fact. The second involves the legal characterization of the speech and the question of whether the FCA erred in law in finding that Mr. Mugesera did not incite to hatred, murder and genocide. The third issue is whether the FCA erred in law in finding that there were no reasonable grounds to conclude that Mr. Mugesera had committed a crime against humanity in Rwanda. V. Analysis A. The Standard of Review\n\nThe first issue we must consider in this appeal is whether the FCA improperly substituted its own findings of fact for those of the IAD. In discussing this issue, we must examine the role played by the FCA in the judicial review process and the manner in which it performed the judicial review function in this case. (1) The Role of the Federal Court of Appeal\n\nAt the secondary level of appellate review, the court’s role is limited to determining whether the reviewing judge has chosen and applied the correct standard of review. The question of what standard to select and apply is one of law and is subject to a correctness standard: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 43.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-20", + "id": "scc-2273-15", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 28", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 36–38", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The purpose stated in Chan is neither the only nor, as contended by the appellant, necessarily the primary purpose sought by the exclusion contained in Article 1F(b) of the Convention. This is made clear by the subsequent decision of our Court in Zrig. In this respect, our colleague Décary J. wrote at paragraphs 118 and 119 of that decision: Purposes of Article 1F of the Convention in general, and Article 1F(b) in particular [118] My reading of precedent, academic commentary and of course, though it has often been neglected, the actual wording of Article 1F of the Convention, leads me to conclude that the purpose of this section is to reconcile various objectives which I would summarize as follows: ensuring that the perpetrators of international crimes or acts contrary to certain international standards will be unable to claim the right of asylum; ensuring that the perpetrators of ordinary crimes committed for fundamentally political purposes can find refuge in a foreign country; ensuring that the right of asylum is not used by the perpetrators of serious ordinary crimes in order to escape the ordinary course of local justice; and ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. It is this fourth purpose which is really at issue in this case. [119] These purposes are complementary. The first indicates that the international community did not wish persons responsible for persecution to profit from a convention designed to protect the victims of their crimes.", - "current_to": "2008-12-17", + "text": "In the case at bar, we find that the FCA exceeded the scope of its judicial review function when it engaged in a broad-ranging review and reassessment of the IAD’s findings of fact. It set aside those findings and made its own evaluation of the evidence even though it had not been demonstrated that the IAD had made a reviewable error on the applicable standard of reasonableness. Based on its own improper findings of fact, it then made errors of law in respect of legal issues which should have been decided on a standard of correctness.\n\nApplications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act . Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact. Under these provisions, questions of law are reviewable on a standard of correctness.\n\nOn questions of fact, the reviewing court can intervene only if it considers that the IAD “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it” (Federal Court Act , s. 18.1(4) (d)). The IAD is entitled to base its decision on evidence adduced in the proceedings which it considers credible and trustworthy in the circumstances: s. 69.4(3) of the Immigration Act. Its findings are entitled to great deference by the reviewing court. Indeed, the FCA itself has held that the standard of review as regards issues of credibility and relevance of evidence is patent unreasonableness: Aguebor v. Minister of Employment & Immigration (1993), 160 N.R. 315, at para. 4. (2) The Federal Court of Appeal Erred in Its Application of the Standard of Review", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-21", + "id": "scc-2273-16", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 28–29", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 39–41", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The second indicates that the signatories of the Convention accepted the fundamental rule of international law that the perpetrator of a political crime, even one of extreme seriousness, is entitled to elude the authorities of the State in which he committed his crime, the premise being that such a person would not be tried fairly in that State and would be persecuted. The third indicates that the signatories did not wish the right of asylum to be transformed into a guarantee of impunity for ordinary criminals whose real fear was not being persecuted, but being tried, by the countries they were seeking to escape. The fourth indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This fourth purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum. [Emphasis added]\n\nI agree with this well documented statement of our colleague Décary J.A.: see also on the existence and scope of this fourth purpose Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, at paragraphs 94-95 (High Court of Australia); Tenzin Dhayakpa v. The Minister of Immigration and Ethnic Affairs, [1995] FCA 1653 (Fed. Ct. Australia) at paragraphs 27 to 29; Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, [1998] FCA 1314 (Fed. Ct. Australia). The purposes are complementary and, in my view, there is no ranking among them.", - "current_to": "2008-12-17", + "text": "In the FCA, Décary J.A. concluded that “so far as the explanation and analysis of the speech are concerned” the IAD’s findings were patently unreasonable (para. 242). In concluding as it did, the FCA showed no deference to the IAD’s findings of fact and overstepped the boundaries of its judicial review function.\n\nDécary J.A. based his conclusion on his own evaluation of the evidence: he reconsidered the relevance and weight to be accorded to the ICI’s Report, reassessed the IAD’s decision to reject Professor Angenot’s interpretation of the speech, and reassessed the reliability and credibility of witnesses. Without saying so, the FCA applied a standard of correctness and reviewed the evidence as if it were the trier of fact. In a judicial review process, it is not open to the reviewing court to reverse a decision because it would have arrived at a different conclusion. The FCA did not focus on the reasonableness of the findings, but reviewed their correctness based on its own view of the evidence.\n\nWe find that the conclusions of Mr. Duquette of the IAD were based on a careful review of all the evidence before the arbitrator and the IAD. Mr. Duquette reviewed and considered each passage in light of all the expert testimony. He identified evidence that he found to be credible and trustworthy and based his decision on it. His findings of fact were well reasoned, including references to the evidence and indications of the weight he accorded to it. Mr. Duquette explained his reasons for preferring one witness’s testimony over another, referred expressly to other evidence which pointed to a different conclusion and explained why that evidence was rejected.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-22", + "id": "scc-2273-17", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 30–34", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 42–45", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Some elements of the reasoning in Chan are still relevant under the IRPA because of the ineligibility rule applicable to refugee claimants under Part 2 of the IRPA, such as ineligibility for serious criminality: see subsections 101(1) and (2) of the IRPA.\n\nThere is, however, a notable difference between the IRPA and the former Act. Under paragraph 46.01(1)(e) and subparagraph 19(1)(c.1)(i) of the former Act, a claimant was ineligible for a refugee hearing if he was inadmissible to Canada on account of serious criminality unless, as previously stated, the Minister was satisfied that the claimant had rehabilitated himself or herself and five years had elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission (emphasis added).\n\nUnder the IRPA, the rule as to ineligibility has changed. By virtue of subsections 101(2), a claimant, who is inadmissible by reason of serious criminality, now remains eligible for a refugee hearing unless the “Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years” (emphasis added).\n\nIn other words, under the former Act, there was a rule of ineligibility for a refugee hearing if a claimant was inadmissible on account of serious criminality. That rule operated unless the exception applied. Under the IRPA the rule is reversed. A claimant remains eligible unless the exception applies.\n\nThe concept of “sentence served” remains relevant to the issue of admissibility to Canada by reason of paragraph 36(3)(c) of the IRPA which deals with rehabilitation.", - "current_to": "2008-12-17", + "text": "The findings of fact as stated by Mr. Duquette for the IAD were reasonable and should not have been interfered with. The FCA should have proceeded with the review of the Minister’s allegations based on the facts as found by the IAD. The FCA had no reason to revisit and reconsider the evidence or the IAD’s findings of fact in relation to the interpretation of the speech.\n\nIn contrast, Nadon J., the reviewing judge of the FCTD, appropriately intervened to reject the findings of Mr. Bourbonnais and Ms. Champoux Ohrt as patently unreasonable. Nadon J. concluded that “there is no evidence to justify the conclusions” (para. 43). As Mr. Duquette found, no conclusive evidence on the record supported the specific finding that Mr. Mugesera was an Akazu or a death squad member, that he had participated in massacres, or that murders had been committed as a result of his speech of November 22, 1992. In the absence of evidence to justify the findings, the reviewing judge was correct to reject them as patently unreasonable.\n\nThe analysis of the Minister’s allegations against Mr. Mugesera will proceed on the basis of the facts as found by Mr. Duquette of the IAD, including his interpretation of the respondent’s speech. (3) The IAD’s Interpretation of the Content of the Speech\n\nBefore proceeding to our examination of the Minister’s allegations, it is necessary to review Mr. Duquette’s analysis of the general meaning of the speech. This is essential because the factual meaning of the speech lies at the core of these allegations.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-23", + "id": "scc-2273-18", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 35–37", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 46–47", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "This brings me now to the determination of the first certified question and the role that domestic law plays or should play in the interpretation of the exclusion clause contained in Article 1F(b) of the Convention. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention\n\nCentral to the exclusion clause of Article 1F(b) of the Convention is the commission of a “serious” non-political crime. What does “serious” mean in that clause? What are the criteria for determining whether a claimant’s crime is serious within the meaning of Article 1F(b) of the Convention? What standards are applicable to that determination? International or local standards or both? Was the crime in the present instance serious enough to justify the application of the exclusion clause? These questions must now be addressed in the context of Article 1F(b) of the Convention. a) The standards applicable to the determination of the gravity of a crime\n\nThe UNHCR-issued Guidelines on International Protection (The UN Refugee Agency), at paragraph 38, suggest that the gravity of a crime be “judged against international standards, not simply by its characterization in the host State or country of origin”. This is, of course, to avoid the profound disparities which may exist between countries with respect to the same behaviour. As Branson J. wrote in Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, supra, at page 15 of his reasons for judgment, “one needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the “immodest” dress of women is regarded as seriously criminal”.", - "current_to": "2008-12-17", + "text": "Mr. Mugesera’s speech had been tape-recorded and subsequently transcribed. At the hearing before the adjudicator, it was proven that the transcript of the cassette (“composite No. 4”) filed in that proceeding accurately represented the speech as given. This was officially acknowledged by Mr. Mugesera at a pre-hearing conference on January 30, 1997 (IAD judgment, at para. 134). At the initial hearing, a number of French translations of the transcript were considered. In particular, the adjudicator was invited to choose between a translation by Mr. Thomas Kamanzi (for the Minister) and another one by Mr. Eugène Shimamungu (for the respondent). The adjudicator preferred the Kamanzi version. There was considerable argument at the IAD hearing over which translation should be accepted, but during final submissions before the IAD, the respondents finally accepted Mr. Kamanzi’s translation as a genuine rendition of the Kinyarwanda text.\n\nCounsel for Mr. Mugesera argued that the speech was not an incitement to murder or violence but rather a call for elections, law enforcement, justice, and self-defence. Counsel also argued that the speech could not be understood as an incitement because of the use of the conditional tense.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-24", + "id": "scc-2273-19", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 38–39", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 48", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The UNHCR Guidelines propose, at paragraph 39, the following factors as relevant in determining the seriousness of a crime for the purpose of Article 1F(b) of the Convention: - the nature of the act; - the actual harm inflicted; - the form of procedure used to prosecute the crime; - the nature of the penalty for such a crime; and - whether most jurisdictions would consider the act in question as a serious crime. The Guidelines go on to give as examples of serious crimes the crimes of murder, rape, arson and armed robbery. They also refer to other offences which could be deemed to be serious “if they are accompanied by the use of deadly weapons, involve serious injury to a person or there is evidence of serious habitual criminal conduct and other similar factors”: ibidem, at paragraph 40. Reference here is clearly made to circumstances surrounding the commission of the crime which, the Guidelines submit, should be taken into account in assessing the seriousness of the crime.\n\nThe UNHCR Guidelines are not binding. Nor is the UN Handbook on Procedures and Criteria for Determining Refugee Status (under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees), Geneva, January 1988, although the Handbook can be relied upon by the courts for guidance: see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 713-714; Tenzin Dhayakpa, supra, at paragraph 27; Igor Ovcharuk, supra, at page 8; INS v. Aguirre-Aguirre, U.S. 1999, 1, at pages 10 and 11 (U.S. Supreme Court). I also agree that the Handbook cannot override the functions of the Court in determining the words of the Convention: see the reasons for judgment of Henry J. in S. v. Refugee Appeals Authority, [1998] 2 NZLR 291, at paragraph 20 (N.Z. C.A.).", - "current_to": "2008-12-17", + "text": "Although it is accepted that Mr. Mugesera mentioned elections in the speech, Mr. Duquette concluded that “the call for elections does not override the earlier calls to violence” (para. 225). It is also worth noting, as Mr. Duquette pointed out, that when he discussed elections, Mr. Mugesera continually referred to the other parties as “Inyenzi”, which literally means cockroaches, and said that they must go away. He stated: [translation] Let them pack their bags, let them get going, so that no one will return here to talk and no one will bring scraps claiming to be flags! [para. 28] Mr. Duquette thus rejected Mr. Mugesera’s contention that the speech conveyed a democratic spirit and that it was, above all, a call for elections.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-25", + "id": "scc-2273-20", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 40–41", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 49–50", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "For the purpose of determining whether a person is ineligible to have his or her refugee claim referred to the Refugee Protection Division on the basis of “serious criminality”, paragraph 101(2)(b) of the IRPA requires a conviction outside Canada for an offence which, if committed in Canada would be an offence in Canada punishable by a maximum term of at least 10 years. This is a strong indication from Parliament that Canada, as a receiving state, considers crimes for which this kind of penalty is prescribed as serious crimes. In the case of a crime committed outside Canada, paragraph 101(2)(b) makes the length of the sentence actually imposed irrelevant. This is to be contrasted with paragraph 101(2)(a) which deals with inadmissibility by reason of a conviction in Canada. In this last instance, Parliament has seen fit to require that the offence be punishable by a maximum term of imprisonment of at least 10 years and that a sentence of at least two years has been imposed (emphasis added).\n\nI agree with counsel for the respondent that, if under Article 1F(b) of the Convention the length or completion of a sentence imposed is to be considered, it should not be considered in isolation. There are many reasons why a lenient sentence may actually be imposed even for a serious crime. That sentence, however, would not diminish the seriousness of the crime committed. On the other hand, a person may be subjected in some countries to substantial prison terms for behaviour that is not considered criminal in Canada.", - "current_to": "2008-12-17", + "text": "Mr. Duquette also rejected Mr. Mugesera’s argument that the speech was a plea for justice, law enforcement and self-defence. The speech could not be justified on the basis of self-defence because “[s]elf‑defence cannot be used to defend against a threat of future harm, or to take the law into one’s own hands as a preventive measure, or to avenge a past event” (para. 224). The speech urged the population to take the law into its own hands and this message went beyond a suggestion that proper law enforcement was necessary to restore order in the country. For example, while it was reasonable for Mr. Mugesera to advocate the prosecution of people who recruited soldiers for enemy armies, he passed the point of advocating law enforcement when he called on the population to “exterminate” those individuals: [translation] Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? Are we really waiting till they come to exterminate us? [para. 16]\n\nGiven the context in which the reference to “extermination” was made, Mr. Duquette rejected Mr. Mugesera’s explanation that the word should be understood to mean the imposition of the death penalty (which is lawful under the Rwandan Penal Code). Mr. Duquette explained this rejection, at para. 229: This is not my reading of the speech. First, the verdict has already been rendered: the accused are guilty and must be sentenced to death. If they are not sentenced, the population must take matters into their own hands. The accused are sometimes clearly identified and sometimes simply members of a group and guilty for that.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-26", + "id": "scc-2273-21", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 42–43", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 51–54", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Further, in many countries, sentencing for criminal offences takes into account factors other than the seriousness of the crime. For example, a player in a prostitution ring may, out of self-interest, assist the prosecuting authorities in the dismantling of the ring in return for a light sentence. Or an offender may seek and obtain a more lenient sentence in exchange for a guilty plea that relieves the victim of the ordeal of testifying about a traumatic sexual assault. Costly and time-consuming mega-trials involving numerous accused can be avoided in the public interest through the negotiation of guilty pleas and lighter sentences. The negotiations relating to sentences may involve undertakings of confidentiality, protection of persons and solicitor-client privileges. Access to the confidential, secured and privileged information may not be permitted, so that a look at the lenient sentence in isolation by a reviewing authority would provide a distorted picture of the seriousness of the crime of which the offender was convicted.\n\nWhile regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored in determining the seriousness of the crime. After all, as previously alluded to, the protection conferred by Article 1F(b) of the Convention is given to the receiving state or nation. The UNHCR Guidelines acknowledges as much: see paragraph 36 above.", - "current_to": "2008-12-17", + "text": "To support his conclusion, Mr. Duquette also relied on the speech’s many passages encouraging the population to attack before being attacked (para. 232).\n\nCounsel for Mr. Mugesera argued that any action encouraged by Mr. Mugesera was dependent on an unfulfilled condition and that there was therefore no suggestion that action should be taken. Mr. Duquette considered this argument and dismissed it as being without merit (paras. 233-38). It was understood in the speech that the conditions had already been fulfilled: there is no question that action was actively encouraged.\n\nThe examples cited by Mr. Duquette adequately illustrate the point and justify his conclusions: [translation] . . . if someone strikes you on one cheek, you hit them twice . . . . [para. 9] It is well understood in this passage that the first blow had already been struck: [translation] . . . if one day someone attacks you with a gun, you will not come to tell us that we . . . did not warn you of it! [para. 19] In the context of the speech, the word “if” means “when”.\n\nFinally, even in the case where the passage could appropriately be characterized as a conditional one, the threat was nonetheless real and the use of the conditional did not reduce it in any way: [translation] If anyone penetrates a cell, watch him and crush him: if he is an accomplice do not let him get away! Yes, he must no longer get away! [para. 24]", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-27", + "id": "scc-2273-22", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 44–45", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 55", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada, supra, at paragraph 38; INS v. Aguirre-Aguirre, supra, at page 11; T v. Home Secretary (1995), 1 WLR 545, at pages 554-555 (English C.A.); Dhayakpa v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph 24.\n\nFor instance, a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.", - "current_to": "2008-12-17", + "text": "Mr. Duquette concluded his analysis as follows at paras. 242-45: This speech was made in wartime (although a cease‑fire was in effect) when a multi‑party system was emerging. In this context, we may therefore expect strong language to be used. But the speech related to another context that must have been understood by both speaker and audience: the ethnic massacres. In mid‑October 1990, a short time after the outbreak of the war, 348 Tutsi were killed within 48 hours in Kibilira and 18 in Satinsyi, two communes close to Kabaya where the speech was made. In March 1992, 5 Tutsi were killed in Kibilira. Also in March of that year, again in Gisenyi prefecture and in neighbouring Ruhengeri prefecture, 300 Bagogwe (a Tutsi subgroup) were assassinated, according to official statistics. From October 1990 to February 1993, a total of 2,000 persons, mostly Tutsi, lost their lives in similar massacres in Rwanda. They were killed because they were considered accomplices of the “Inyenzi”. They were not soldiers or combatants, but civilians who were identified with the enemy because they belonged to a particular ethnic group. Under such circumstances, the speech cannot be considered innocuous. Mr. Mugesera urged the crowd not to leave themselves open to invasion, first by the FRP and second by those identified with them, members of the opposition parties and the Tutsi within the country. The heads of the opposition parties, Twagiramungu, Nsengiyaremye, and Ndasingwa (Lando), are traitors to the country. These parties must leave the region. The language used is extremely violent and is an incitement to murder. He recommends that the public take the law into their own hands by exterminating or being exterminated, using a language to provoke panic.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-28", + "id": "scc-2273-23", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 46–48", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 55–56", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence. b) Whether the crime in the present instance is serious and justified the application of the exclusion clause\n\nIt should be recalled that the appellant was convicted in the United States for trafficking a hard drug, namely opium.\n\nIt is not disputed that trafficking in narcotics and psychotropic substances can entail both human and economic consequences for society. As the evidence reveals, drug trafficking is treated as a serious crime across the international spectrum. In their book on The Refugee in International Law, 3rd ed., Oxford University Press, 2007, at page 179, G.S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view to promoting consistent decisions “proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery” (emphasis added).", - "current_to": "2008-12-17", + "text": "He also uses the argument of party authority: “. . . do not say that we, the party representatives, did not warn you!” As for the Tutsi, it is already clear in paragraph 6 that the Hutu must defend themselves against them. I have concluded that the Tutsi were recruiting young people. Finally, the gist of paragraph 25 is clear: do not make the same mistake that you made in 1959 by letting the Tutsi leave; you must throw them into the river. All of this is an incitement to genocide. [Footnotes omitted; emphasis added.]\n\nHaving concluded that the FCA improperly substituted its own findings of fact for those of the IAD and having reviewed the factual content of the speech, we must now determine the legal nature of the speech in relation to the allegations made against the respondent Mugesera and in light of the applicable standard of proof set out in the relevant sections of the Immigration Act. This determination will be based on the IAD’s findings of fact regarding the translation and the interpretation of the speech. We will consider in turn each of the grounds raised by the Minister to justify deporting Mr. Mugesera. B. Incitement to Murder, Genocide and Hatred", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-29", + "id": "scc-2273-24", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 49–50", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 57", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "In accordance with the three United Nations Drug Conventions, i.e. the 1961 Single Convention on Narcotic Drugs (amended by the Protocol of 25 March 1972), 976 U.N.T.S. 105; the 1971 Convention Against Psychotropic Substances, 1019 U.N.T.S. 175; and the 1988 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, E/Conf. 82/15, signatory nations are required to coordinate preventive and repressive action against drug trafficking, including the imposition of penal provisions as necessary. The choice of penal provisions remains at the discretion of the Member State and may exceed those provided by the Conventions if the Member States deem them desirable or necessary for the protection of public health and welfare.\n\nAs reflected by the penal provisions enacted, most signatory states define and treat drug trafficking as a serious crime. In contrast to mere possession, drug trafficking is usually punishable by a period of incarceration. In this country, the sentence imposed for a drug trafficking offence carries a maximum time of 18 months for a summary conviction and up to a maximum of life imprisonment for an indictable offence depending on the substance trafficked: see the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5.", - "current_to": "2008-12-17", + "text": "As a first ground, the Minister alleges that Mr. Mugesera committed the crime of inciting to murder, contrary to ss. 91(4) and 311 of the Rwandan Penal Code and ss. 22 , 235 and 464 (a) of the Criminal Code of Canada . The Minister also asserts that the respondent committed the crime of incitement to hatred contrary to s. 393 of the Rwandan Penal Code and s. 319 of the Criminal Code . Finally, the Minister asserts that the respondent committed the crime of incitement to genocide in violation of s. 166 of the Rwandan Penal Code and of executive enactment 08/75 of February 12, 1975, by which Rwanda acceded to the International Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, December 9, 1948 (“Genocide Convention”), and contrary to s. 318(1) of the Criminal Code .", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-30", + "id": "scc-2273-25", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 51", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 58", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "In other countries, the punishment is equal to or greater than ours and can include both incarceration and the imposition of fines. The United States also provides for a range of sentences depending on the substance trafficked, whether the consequence of trafficking included serious injury or death, and whether there were prior convictions. Overall, sentences can range from a minimum of one year to a life sentence and fines can be imposed from $100,000 to $20,000,000, depending on, as per the wording of the article, whether the offender is an individual or other than an individual: see 21 U.S.C. §841. In a recent case comparable to ours where the accused pleaded guilty to selling .26 grams of rock cocaine for $20, the US Court of Appeal for the 9th circuit upheld, in August 2007, the presumption that the accused had committed a particularly serious crime. The accused had been sentenced to the time served (36 days), a fine of $200 and a five-year probation period: see Miguel-Miguel v. Gonzales, supra.", - "current_to": "2008-12-17", + "text": "For the purpose of these specific allegations, the Minister’s evidence must meet the civil standard of the balance of probabilities. Sections 27(1)(a.1) and 27(1)(a.3) of the Immigration Act provide: 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who . . . (a.1) outside Canada, . . . (ii) has committed, in the opinion of the immigration officer or peace officer, based on a balance of probabilities, an act or omission that would constitute an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, . . . (a.3) before being granted landing, . . . (ii) committed outside Canada, in the opinion of the immigration officer or peace officer, based on a balance of probabilities, an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence referred to in paragraph (a.2), . . .", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-31", + "id": "scc-2273-26", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 52–53", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 59–61", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Less severe, but similar punishment is legislated in England, Australia, New Zealand and France. Drug trafficking in the United Kingdom can lead to a maximum sentence of 3 to 12 months for summary conviction offences or a 400 to 2,500 pound fine or both. For indictable offences, the penalty is increased, ranging from 5 years to life imprisonment or a fine or both: see the Misuse of Drugs Act, 1971 (U.K.), 1971, c. 38, s. 4 and Schedule 4. Similarly, Australia permits a ten-year period of imprisonment or 2,000 penalty units or both: see Criminal Code Act, 1995 (Cth.), s. 302.4(1). New Zealand sets a range for indictable trafficking offences of a maximum of 8 years to life imprisonment depending on the substance and up to one year imprisonment or a fine of up to $1,000 for summary conviction offences: see Misuse of Drugs Act, 1975 (N.Z.), 1975/116, s. 6. Finally, France allows for 10 years of imprisonment and fines of 7.5 million euros when the trafficked drug is for resale as opposed to individual consumption: see the French Code Pénal, sections 222-237.\n\nIn this country, opium is classified in Schedule 1 and, according to paragraph 5(3)(a) of the Controlled Drugs and Substances Act, supra, a person who sells that substance is liable to imprisonment for life. There is no doubt that Parliament considers the trafficking of opium as a serious crime.", - "current_to": "2008-12-17", + "text": "As explained above, the standard of review on questions of law is one of correctness. Although the IAD is entitled to deference as regards findings of credibility and relevance, no such deference applies when it comes to defining the elements of the crime or to deciding whether the Minister has discharged the burden of proof, namely the burden of proving that, on the facts of this case, as found on a balance of probabilities, the speech constituted an incitement to murder, genocide and/or hatred. We will proceed, as did the courts below, on the basis that, where the Minister relies on a crime committed abroad, a conclusion that the elements of the crime in Canadian criminal law have been made out will be deemed to be determinative in respect of the commission of crimes under Rwandan criminal law. No one challenges the fact that the constituent elements of the crimes are basically the same in both legal systems. (1) Incitement to Murder\n\nAs will be recalled, Mr. Duquette concluded that while there was evidence that murders had occurred following the speech by the respondent, the evidence directly linking the murders to the speech was insufficient (para. 310). This finding of fact precludes the application of s. 22 of the Criminal Code on counselling an offence that is committed.\n\nUnder s. 464 (a) of the Criminal Code , however, it is an offence to counsel another person to commit an offence even if the offence is not committed. The Rwandan Penal Code also provides that it is a crime to incite murder, whether or not the incitement is followed by the actual commission of an offence. (a) Elements of the Offence of Counselling a Murder Which Is Not Committed", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-32", + "id": "scc-2273-27", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 54–55", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 62–65", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "In the United States, the behaviour of the appellant was classified a class B felony. The appellant, although a first offender, received a sentence of 29 days in jail and a five year probation period. A probation order, especially one of five years, is not necessarily a light sentence as it entails restrictions which can be severe on one’s liberty as well as conditions leading to penal consequences in case of breaches: see R. v. B. (M.), [1987] O.J. No. 726 (Ont. C.A.).\n\nIn determining whether the appellant had been convicted of a serious crime, the Board looked at: a) the gravity of the crimes (trafficking in opium and criminal possession of marijuana) under New York legislation which, even for a first offender, resulted in a jail term as well as a five year probation period; b) the sentence imposed by the New York court; c) the facts underlying the conviction, namely the nature of the substance trafficked and possessed, a traffic of opium in three parts, the quantity of drugs possessed and trafficked; d) the finding of this Court in Chan that a crime is a serious non political crime if a maximum sentence of ten years or more could have been imposed if the crime had been committed in Canada; e) the objective gravity of a crime of trafficking in opium in Canada which carries a possible penalty of life imprisonment; and f) the fact that the appellant violated his probation order by failing to report three times to his probation officer and eventually absconded.", - "current_to": "2008-12-17", + "text": "Section 464 (a) of the Criminal Code provides that: 464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely, (a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable;\n\n“Counsel[ling]” is defined in s. 22(3) of the Criminal Code , which says that its meaning includes “procur[ing]”, “solicit[ing]”, or “incit[ing]”. To incite means to urge, stir up or stimulate: R. v. Ford (2000), 145 C.C.C. (3d) 336 (Ont. C.A.), at para. 28.\n\nThe offence of counselling requires that the statements, viewed objectively, actively promote, advocate, or encourage the commission of the offence described in them: R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 56. The criminal act will be made out where the statements (1) are likely to incite, and (2) are made with a view to inciting, the commission of the offence: R. v. Dionne (1987), 38 C.C.C. (3d) 171 (N.B.C.A.), at p. 180. An intention to bring about the criminal result, that the counsellor intend the commission of the offence counselled, will obviously satisfy the requisite mental element for the offence of counselling. (b) Findings in Respect of the Criminal Act\n\nMr. Duquette held that the November 22, 1992 speech was an incitement to kill members of the Tutsi ethnic group and opposition party members. We will review certain key passages, and Mr. Duquette’s explanation and analysis of them, in order to determine whether the criminal act of counselling a murder that is not committed has been made out.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-36253-33", + "id": "scc-2273-28", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 56–59", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 66", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "I believe that the judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non political crime outside the country. c) The answer to the first certified question\n\nThe answer to the following question: Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? is no.\n\nIn view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question. Conclusion\n\nFor these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us. “Gilles Létourneau” J.A. “I agree Karen Sharlow J.A.” “I agree J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2008-12-17", + "text": "Mr. Duquette’s analysis began with a review of the following passage, which called upon the audience to defend themselves against an invasion: [translation] The second point I have decided to discuss with you is that you should not let yourselves be invaded. At all costs, you will leave here taking these words with you, that you should not let yourselves be invaded. Tell me, if you as a man, a mother or father, who are here, if someone comes one day to move into your yard and defecate there, will you really allow him to come again? It is out of the question. You should know that the first important thing . . . you have seen our brothers from Gitarama here. Their flags — I distributed them when I was working at our party’s headquarters. People flew them everywhere in Gitarama. But when you come from Kigali, and you continue on into Kibilira, there are no more M.R.N.D. flags to be seen: they have been taken down! In any case, you understand yourselves, the priests have taught us good things: our movement is also a movement for peace. However, we have to know that, for our peace, there is no way to have it but to defend ourselves. Some have quoted the following saying: [translation] “Those who seek peace always make ready for war.” Thus, in our prefecture of Gisenyi, this is the fourth or fifth time I am speaking about it, there are those who have acted first. It says in the Gospel that if someone strikes you on one cheek, you should turn the other cheek.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-1", + "id": "scc-2273-29", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 1–3", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 66–68", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "This is an appeal from a judgment of Justice Mosley (2006 FC 1385). He dismissed the appellants’ application for judicial review of the decision of a pre removal risk assessment officer, who rejected their application for protection under subsection 112(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). An application under subsection 112(1) of the IRPA is referred to as a “pre removal risk assessment application” or a “PRRA application”.\n\nThe principal issue in this appeal is the interpretation of paragraph 113(a) of the IRPA. Paragraph 113(a) deals with the circumstances in which a failed refugee claimant who makes a PRRA application may present evidence to the PRRA officer that was not before the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board.\n\nJustice Mosley summarized, at paragraphs 10 through 12 of his reasons, his conclusions as to the standard of review applicable to a decision of a PRRA officer. Neither party suggested that he erred in his statement of the applicable standard of review, or that he failed to apply the appropriate standard of review. As that issue was not debated, I accept for the purposes of this appeal that the standard of review for questions of law is correctness, for questions of fact is patent unreasonableness, and for questions of mixed fact and law is reasonableness. In my view, nothing in this appeal turns on the standard of review.", - "current_to": "2007-12-06", + "text": "I tell you that the Gospel has changed in our movement: if someone strikes you on one cheek, you hit them twice on one cheek and they collapse on the ground and will never be able to recover! So here, never again will what they call their flag, what they call their cap, even what they call their militant, come to our soil to speak: I mean throughout Gisenyi, from one end to the other! [para. 9]\n\nParagraph 9 introduced the second point in Mr. Mugesera’s four-part speech: that they not allow themselves to be invaded. Mr. Duquette accepted Professor Angenot’s view that the message here was not to allow oneself, as a Rwandan, to be invaded by aggressors from the RPF and from among political opponents. Mr. Duquette noted that throughout the speech political opponents were “systematically characterized as inyenzi”, or cockroaches (para. 163).\n\nMr. Duquette explained the meaning of the term “Inyenzi” as follows: The expression “accomplices of the Inyenzi” should be explained. The term “inyenzi” was used during the 1960s to refer to a group of armed refugees who were attempting to stage incursions against Rwanda from outside the country. Inyenzi literally means cockroaches, alluding to the insects that infiltrate, are everywhere at night and are not seen during the day. By extension, Mr. Mugesera — and many others, to be sure — called those who were attacking Rwanda in the 1990s, the RPF, inyenzi. The RPF, for its part referred to its members as inkotanyi (literally, tenacious fighters) in a reference to militants of the king in the 19th century. In the dictionary filed as exhibit M‑4‑9, the third meaning is given as “[Translation] member of a Tutsi incursion group, at the time of Rwanda’s independence; a partisan fighter”. [Footnotes omitted; para. 156.]", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-2", + "id": "scc-2273-30", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 4", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 69", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Mr. Syed Masood Raza, his wife and their two children are citizens of Pakistan and members of the Shia minority in that country. Mr. Raza suffered attacks in 1994 at the hands of Sipah-e-Sahaba Pakistan extremists because of Mr. Raza’s participation in the religious and business affairs of the Shia community. He reported the attacks to the police, to no avail. Mr. Raza left Pakistan on October 3, 1994 and his family left the following December. They lived in Texas without status until 2003, when they came to Canada. Mr. Raza and his family sought refugee protection under the IRPA on the basis that he had been attacked because of his religious faith and that adequate state protection was not available.", - "current_to": "2007-12-06", + "text": "At paragraph 13 of his speech, Mr. Mugesera attempted to draw a connection between the partisan fighters of the 1960s and the RPF. To him, they were all “Inyenzi”: [translation] Something else which may be called [translation] “not allowing ourselves to be invaded” in the country, you know people they call “Inyenzis” (cockroaches), no longer call them “Inkotanyi” (tough fighters), as they are actually “Inyenzis”. These people called Inyenzis are now on their way to attack us. He referred to the “Inkotanyi” as “Inyenzi”. Mr. Duquette concluded that: “The connection will necessarily also be made with all those he refers to as inyenzi in the speech” (para. 168).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-3", + "id": "scc-2273-31", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 5", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 70", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The provisions of IRPA describing the conferral of refugee protection are sections 95, 96 and 97, which read in relevant part as follows (provisions referring to criminality and national security, which are not in issue in this case, have been omitted): 95. (1) Refugee protection is conferred on a person when 95. (1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) […] the Minister allows an application for protection. b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection […]. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), […] . (2) Est appelée personne protégée la personne à qui l’asile est conféré […] . 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, 96.", - "current_to": "2007-12-06", + "text": "At paragraph 15, Mr. Mugesera added that those who recruited soldiers for enemy armies should be arrested and prosecuted: [translation] You know what it is, dear friends, “not letting ourselves be invaded”, or you know it. You know there are “Inyenzis” in the country who have taken the opportunity of sending their children to the front, to go and help the “Inkotanyis”. That is something you intend to speak about yourselves. You know that yesterday I came back from Nshili in Gikongoro at the Burundi border, travelling through Butare. Everywhere people told me of the number of young people who had gone. They said to me [translation] “Where they are going, and who is taking them . . . why are they are (sic) not arrested as well as their families?” So I will tell you now, it is written in the law, in the book of the Penal Code: [translation] “Every person who recruits soldiers by seeking them in the population, seeking young persons everywhere whom they will give to the foreign armed forces attacking the Republic, shall be liable to death”. It is in writing. This was not an unreasonable statement. Mr. Duquette concluded that, although Mr. Mugesera did not say that people should be arrested because they were Tutsi, there was evidence to support the finding that it was understood at the time in Rwanda that the recruiters were Tutsi extremists. Indeed this was the explanation given by Mr. Mugesera to a journalist from Le Soleil (para. 178).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-4", + "id": "scc-2273-32", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 5", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 71–72", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "A qualité de réfugié au sens de la Convention—le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; […] . a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; […] . 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality […] would subject them personally 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité […] exposée : (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (ii) elle y est exposée en tout lieu de ce pays", - "current_to": "2007-12-06", + "text": "Mr. Duquette interpreted the following two passages, in particular, as a call for murder: [translation] Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? Are we really waiting till they come to exterminate us? I should like to tell you that we are now asking that these people be placed on a list and be taken to court to be tried in our presence. If they (the judges) refuse, it is written in the Constitution that “ubutabera bubera abaturage”. In English, this means that [translation] “JUSTICE IS RENDERED IN THE PEOPLE’S NAME”. If justice therefore is no longer serving the people, as written in our Constitution which we voted for ourselves, this means that at that point we who also make up the population whom it is supposed to serve, we must do something ourselves to exterminate this rabble. I tell you in all truth, as it says in the Gospel, “When you allow a serpent biting you to remain attached to you with your agreement, you are the one who will suffer”. [paras. 16-17]\n\nMr. Duquette rejected Mr. Mugesera’s suggestion that, when he said “exterminate”, he was talking about the death penalty. It is clear that he was suggesting that the legal system was not functioning and that the public should take the law into their own hands. He even suggested the verdict: extermination.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-5", + "id": "scc-2273-33", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 5–6", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 73–74", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (iii) la menace ou le risque ne résulte pas de sanctions légitimes—sauf celles infligées au mépris des normes internationales—et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.\n\nThe claims of Mr. Raza and his family for refugee protection were rejected by the RPD. The RPD did not doubt Mr. Raza’s account of the attacks he suffered. However, the RPD concluded that conditions in Pakistan had changed since his departure, and that adequate state protection was available as of the date of his application for refugee protection. Leave to seek judicial review of that decision was dismissed by the Federal Court on May 5, 2005.", - "current_to": "2007-12-06", + "text": "Paragraph 24 conveyed a similar “kill or be killed” message: [translation] One important thing which I am asking all those who are working and are in the M.R.N.D.: “Unite!” People in charge of finances, like the others working in that area, let them bring money so we can use it. The same applies to persons working on their own account. The M.R.N.D. have given them money to help them and support them so they can live as men. As they intend to cut our necks, let them bring (money) so [[we can defend ourselves by cutting their necks]]! Remember that the basis of our Movement is the cell, that the basis of our Movement is the sector and the Commune. He (the President) told you that a tree which has branches and leaves but no roots dies. Our roots are fundamentally there. Unite again, of course you are no longer paid, members of our cells, come together. If anyone penetrates a cell, watch him and crush him: if he is an accomplice do not let him get away! Yes, he must no longer get away!\n\nMr. Mugesera suggested that the first part of the paragraph was only a call for donations to support the war effort: he was asking the audience to help the government buy weapons. Mr. Duquette rejected this explanation as too subtle for the audience (para. 189). Mr. Mugesera referred to people who allegedly intended to cut his throat and said that resources had to be pooled to kill them.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-6", + "id": "scc-2273-34", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 7–9", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 75", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Once the leave application was dismissed, there was no procedure available to Mr. Raza and his family to challenge the decision of the RPD to reject their claim for refugee protection on the basis of a finding of adequate state protection. There is no statutory right of appeal. Subsection 55(1) of the Refugee Protection Division Rules (SOR/2002-228) provides for a refugee protection claim to be reopened after it has been decided, but the Federal Court has held that this applies only if the application to reopen is based on an allegation that there was a failure to observe a principle of natural justice (see, for example, Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, Lakhani v. Canada (Minister of Citizenship and Immigration), 2006 FC 612).\n\nAfter the RPD rejected the claim of Mr. Raza and his family for refugee protection, they became the subjects of a removal order. Prior to their removal date, they made a PRRA application under subsection 112(1) of the IRPA, as they were entitled to do. The removal order was stayed pending the determination of the PRRA application (section 232 of the Immigration Regulations, SOR/2002-227).\n\nSubsection 112(1) reads in relevant part as follows: 112. (1) A person in Canada […] may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force […] 112. (1) La personne se trouvant au Canada […] peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet […]", - "current_to": "2007-12-06", + "text": "In the second part of the same paragraph, Mr. Mugesera focused on people who might enter the “cell”. The “cell” is the smallest administrative unit in Rwanda. Each prefecture is composed of communes, which are in turn composed of cells. The message conveyed here was that if someone arrived in the cell and was found to be an accomplice, he must not be allowed to get away. Mr. Duquette concluded that what was meant was that he should not be allowed to get out alive. Mr. Mugesera argued that he meant to say only that the stranger should be questioned to establish his identity and that he should be brought to trial. Mr. Duquette rejected this explanation as totally unreasonable. The audience would not believe that this alternative explanation is implicit in the words “he must no longer get away!”", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-7", + "id": "scc-2273-35", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 10–11", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 76", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The purpose of section 112 of the IRPA is not disputed. It is explained as follows in the Regulatory Impact Analysis Statement, Canada Gazette, Part II, Vol. 136, Extra (June 14, 2002), at page 274: The policy basis for assessing risk prior to removal is found in Canada’s domestic and international commitments to the principle of non-refoulement. This principle holds that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. Such commitments require that risk be reviewed prior to removal. La justification, au niveau des politiques, de l’examen des risques avant renvoi se trouve dans les engagements nationaux et internationaux du Canada en faveur du principe de nonrefoulement. En vertu de ce principe, les demandeurs ne peuvent être renvoyés du Canada dans un pays où ils risqueraient d’être persécutés, torturés, tués ou soumis à des traitements ou peines cruels ou inusités. Ces engagements exigent que les risques soient examinés avant le renvoi.\n\nAssuming there are no issues of criminality or national security, an application under subsection 112(1) is allowed if, at the time of the application, the applicant meets the definition of “Convention refugee” in section 96 of the IRPA or the definition of “person in need of protection” in section 97 of the IRPA (paragraph 113(c) of the IRPA). The result of a successful PRRA application is to confer refugee protection on the applicant (subsection 114(1) of the IRPA).", - "current_to": "2007-12-06", + "text": "Finally, the conclusion of the speech again called for murder: [translation] So in order to conclude, I would remind you of all the important things I have just spoken to you about: the most essential is that we should not allow ourselves to be invaded, lest the very persons who are collapsing take away some of you. Do not be afraid, know that anyone whose neck you do not cut is the one who will cut your neck. Let me tell you, these people should begin leaving while there is still time and go and live with their people, or even go to the “Inyenzis”, instead of living among us and keeping their guns, so that when we are asleep they can shoot us. Let them pack their bags, let them get going, so that no one will return here to talk and no one will bring scraps claiming to be flags! [para. 28] Mr. Mugesera reminded the audience not to leave themselves open to invasion. He warned that “anyone whose neck you do not cut is the one who will cut your neck”. The point of this, Mr. Duquette concluded, was not to respond to an attack, but rather to make the first move. The speech also advised members of other political parties to leave before it was too late. Mr. Duquette found that while it did not amount to a direct call to murder, such advice was “extremely threatening because of what ha[d] just been said” (para. 218).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-8", + "id": "scc-2273-36", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 12", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 77–79", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "A PRRA application by a failed refugee claimant is not an appeal or reconsideration of the decision of the RPD to reject a claim for refugee protection. Nevertheless, it may require consideration of some or all of the same factual and legal issues as a claim for refugee protection. In such cases there is an obvious risk of wasteful and potentially abusive relitigation. The IRPA mitigates that risk by limiting the evidence that may be presented to the PRRA officer. The limitation is found in paragraph 113(a) of the IRPA, which reads as follows: 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [… ] . a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet; […] .", - "current_to": "2007-12-06", + "text": "The IAD’s findings of fact support the conclusion that Mr. Mugesera’s speech should be viewed as an incitement to kill Tutsi and opposition party members. The elements of the actus reus are met: viewed objectively, Mr. Mugesera’s message was likely to incite, and was made with a view to inciting, murder. Mr. Mugesera conveyed to his listeners, in extremely violent language, the message that they faced a choice of either exterminating the Tutsi, the accomplices of the Tutsi, and their own political opponents, or being exterminated by them. (c) Findings in Respect of the Guilty Mind\n\nOn the question of whether Mr. Mugesera had the requisite intent, Mr. Duquette found that, given the context, Mr. Mugesera knew his speech would be understood as an incitement to commit murder. The context to which Mr. Duquette referred was the context of the ethnic massacres that took place before and after the speech: From October 1990 to February 1993, a total of 2,000 persons, mostly Tutsi, lost their lives in similar massacres in Rwanda. They were killed because they were considered accomplices of the “Inyenzi”. They were not soldiers or combatants, but civilians who were identified with the enemy because they belonged to a particular ethnic group. [Footnote omitted; para. 242.]\n\nThis finding of fact is sufficient to meet the mens rea for counselling an offence that is not committed. It shows that, on the facts, Mr. Mugesera not only intentionally gave the speech, but also intended that it result in the commission of murders.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-9", + "id": "scc-2273-37", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 13", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 80–81", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5.", - "current_to": "2007-12-06", + "text": "We find that the IAD correctly concluded that the allegation of incitement to murder that is not committed was well founded, and that the FCA erred in overturning that finding. We must now consider the Minister’s allegations in respect of the crime of incitement to genocide. (2) Incitement to Genocide\n\nThe second offence that the Minister alleges Mr. Mugesera committed in giving the speech is advocating or promoting genocide. We will now consider the elements of the offence and whether they are made out on the facts as found by Mr. Duquette.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-10", + "id": "scc-2273-38", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 13–16", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 82", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).\n\nThe first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a).\n\nI do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.\n\nOne of the arguments considered by Justice Mosley in this case is whether a document that came into existence after the RPD hearing is, for that reason alone, “new evidence”. He concluded that the newness of documentary evidence cannot be tested solely by the date on which the document was created. I agree. What is important is the event or circumstance sought to be proved by the documentary evidence.", - "current_to": "2007-12-06", + "text": "Genocide is a crime originating in international law. International law is thus called upon to play a crucial role as an aid in interpreting domestic law, particularly as regards the elements of the crime of incitement to genocide. Section 318(1) of the Criminal Code incorporates, almost word for word, the definition of genocide found in art. II of the Genocide Convention, and the Minister’s allegation B makes specific reference to Rwanda’s accession to the Genocide Convention. Canada is also bound by the Genocide Convention. In addition to treaty obligations, the legal principles underlying the Genocide Convention are recognized as part of customary international law: see International Court of Justice, Advisory Opinion of May 28, 1951, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, at p. 15. The importance of interpreting domestic law in a manner that accords with the principles of customary international law and with Canada’s treaty obligations was emphasized in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 69-71. In this context, international sources like the recent jurisprudence of international criminal courts are highly relevant to the analysis. (a) The Elements of Advocating Genocide", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-11", + "id": "scc-2273-39", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 17–19", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 83–84", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Counsel for Mr. Raza and his family argued that the evidence sought to be presented in support of a PRRA application cannot be rejected solely on the basis that it “addresses the same risk issue” considered by the RPD. I agree. However, a PRRA officer may properly reject such evidence if it cannot prove that the relevant facts as of the date of the PRRA application are materially different from the facts as found by the RPD.\n\nIn this case, Mr. Raza and his family submitted a number of documents in support of their PRRA application. All of the documents were created after the rejection of their claim for refugee protection. The PRRA officer concluded that the information in the documents was essentially a repetition of the same information that was before the RPD. In my view, that conclusion was reasonable. The documents are not capable of establishing that state protection in Pakistan, which had been found by the RPD to be adequate, was no longer adequate as of the date of the PRRA application. Therefore, the proposed new evidence fails at the fourth question listed above.\n\nJustice Mosley found that the PRRA officer’s assessment of the documents was reasonable and was not based on an error of law. I agree. For that reason, I would dismiss this appeal.", - "current_to": "2007-12-06", + "text": "Section 318(1) of the Criminal Code proscribes the offence of advocating genocide: “Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” Genocide is defined as the act of killing members of an identifiable group or of deliberately inflicting conditions of life on an identifiable group calculated to bring about the physical destruction of that group, in whole or in part: subs. (2). Subsection (4), at the relevant time, defined an identifiable group as “any section of the public distinguished by colour, race, religion or ethnic origin”. There is no Canadian jurisprudence dealing specifically with s. 318(1) of the Criminal Code . (i) Is Proof of Genocide Required?\n\nIn Prosecutor v. Akayesu, 9 IHRR 608 (1998), the Trial Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) drew a distinction between the constituent elements of the crimes of complicity in genocide and incitement to genocide. In the case of a charge of complicity, the prosecution must prove that genocide has actually occurred. A charge of incitement to genocide, however, does not require proof that genocide has in fact happened: In the opinion of the Chamber, the fact that such acts are in themselves particularly dangerous because of the high risk they carry for society, even if they fail to produce results, warrants that they be punished as an exceptional measure. The Chamber holds that genocide clearly falls within the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even where such incitement failed to produce the result expected by the perpetrator. [para. 562]", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-35786-12", + "id": "scc-2273-40", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 20–21", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 85–86", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Justice Mosley certified the following questions: 1. Is “new evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that post-dates and is “substantially different” from the evidence that was before the Refugee Protection Division (RPD)? 2. Does the standard for the reception of “new evidence” under s. 113(a) of the IRPA require the PRRA officer to accept any evidence created after the RPD determination, even where that evidence was reasonably available to the applicant or he/she could reasonably have been expected to present it at the hearing.\n\nThese questions do not lend themselves to simple yes or no answers. I would answer them by referring to the questions listed in paragraph 13 of these reasons. “K. Sharlow” J.A. “I agree A.M. Linden J.A.” “I agree C. Michael Ryer J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2007-12-06", + "text": "In the case of the allegation of incitement to genocide, the Minister does not need to establish a direct causal link between the speech and any acts of murder or violence. Because of its inchoate nature, incitement is punishable by virtue of the criminal act alone irrespective of the result. It remains a crime regardless of whether it has the effect it is intended to have: see also Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial Chamber I) (“Media Case”), 3 December 2003, at para. 1029. The Minister is not required, therefore, to prove that individuals who heard Mr. Mugesera’s speech killed or attempted to kill any members of an identifiable group. (ii) The Criminal Act: Direct and Public Incitement\n\nThe criminal act requirement for incitement to genocide has two elements: the act of incitement must be direct and it must be public: Akayesu, Trial Chamber, at para. 559. See also art. III(c) of the Genocide Convention. The speech was public. We need only consider the meaning of the requirement that it be direct.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-1", + "id": "scc-2273-41", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 1–4", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 87–88", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "This is an appeal from the judgment of Gleason J. (the judge) of the Federal Court dismissing Mr. Najafi’s application for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board (the Division) that found him inadmissible pursuant to paragraphs 34(1)(b) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In its decision, the Division found that there were reasonable grounds to believe that Mr. Najafi was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and that the KDPI had engaged in or instigated the subversion by force of the Iranian government.\n\nThe judge certified the following question under subsection 74(d) of the IRPA: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nIn this appeal, Mr. Najafi also argues, as he did before the Division and the judge, that paragraph 34(1)(f) of the IRPA has to be construed and read down to avoid a violation of his freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter)).\n\nFor the reasons that follow, I propose that this appeal be dismissed.", - "current_to": "2014-11-07", + "text": "In Akayesu, the Trial Chamber of the ICTR held that the direct element “implies that the incitement assume a direct form and specifically provoke another to engage in a criminal act, and that more than mere vague or indirect suggestion goes to constitute direct incitement” (para. 557). The direct element of incitement “should be viewed in the light of its cultural and linguistic content” (para. 557). Depending on the audience, a particular speech may be perceived as direct in one country, and not so in another. The determination of whether acts of incitement can be viewed as direct necessarily focusses mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof (para. 558). The words used must be clear enough to be immediately understood by the intended audience. Innuendo and obscure language do not suffice. (iii) The Guilty Mind for Direct and Public Incitement to Genocide\n\nThe guilty mind required for the crime of incitement to genocide is an “intent to directly prompt or provoke another to commit genocide” (Akayesu, Trial Chamber, at para. 560). It implies a desire on the part of the perpetrator to cause another to have the state of mind necessary to commit the acts enumerated in s. 318(2) of the Criminal Code . The person who incites must also have the specific intent to commit genocide: an intent to destroy in whole or in part any identifiable group, namely, any section of the public distinguished by colour, race, religion, or ethnic origin (s. 318(2) and (4) of the Criminal Code ).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-2", + "id": "scc-2273-42", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 5–7", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 89–90", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Mr. Najafi is a citizen of Iran of Kurdish ethnicity. He arrived in Canada in 1999 and made a refugee claim that was accepted. He thus has refugee status. However, he does not have permanent resident status in Canada. Indeed, on March 5, 2010, a report under subsection 44(1) of the IRPA was issued regarding Mr. Najafi. On March 2, 2011, this report was referred to the Division in order to have Mr. Najafi declared inadmissible due to his involvement with the KDPI.\n\nThe Minister of Public Safety and Emergency Preparedness (the Minister) has never alleged that Mr. Najafi was personally involved in any act of violence, including an act to subvert the government by force. The issues before the Division were whether Mr. Najafi had been a member of the KDPI and whether such organization falls within the scope of paragraphs 34(1)(f) and (b) of the IRPA.\n\nDuring the inadmissibility proceedings, Mr. Najafi, in addition to his testimony, provided evidence from a senior member of the KDPI in Canada, from a journalist well versed in the activities of the KDPI, and from two international law experts on the legality of the use of force in international law in the context of an oppressed people seeking self-determination.", - "current_to": "2014-11-07", + "text": "Intent can be inferred from the circumstances. Thus, the court can infer the genocidal intent of a particular act from the systematic perpetration of other culpable acts against the group; the scale of any atrocities that are committed and their general nature in a region or a country; or the fact that victims are deliberately and systematically targeted on account of their membership in a particular group while the members of other groups are left alone: Akayesu, Trial Chamber, at para. 523. A speech that is given in the context of a genocidal environment will have a heightened impact, and for this reason the environment in which a statement is made can be an indicator of the speaker’s intent (Media Case, at para. 1022). (b) Findings in Respect of the Criminal Act\n\nMr. Duquette’s conclusion that Mr. Mugesera advocated genocide in his speech of November 22, 1992, is based on a number of findings of fact. The most important of them is Mr. Duquette’s interpretation of para. 25 of the speech, the infamous “river passage”: [translation] Recently, I told someone who came to brag to me that he belonged to the P.L. — I told him [translation] “The mistake we made in 1959, when I was still a child, is to let you leave”. I asked him if he had not heard of the story of the Falashas, who returned home to Israel from Ethiopia? He replied that he knew nothing about it! I told him [translation] “So don’t you know how to listen or read? I am telling you that your home is in Ethiopia, that we will send you by the Nyabarongo so you can get there quickly”.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-3", + "id": "scc-2273-43", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 8–10", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 91–93", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "First, the Division concluded that there were reasonable grounds to believe that Mr. Najafi was a de facto member of the KDPI within the broad meaning of the term “member” in paragraph 34(1)(f) of the IRPA. Although this conclusion is not being challenged on appeal, I note that the Division relied on Mr. Najafi’s association with the KDPI both in Iran and subsequently in Canada. Mr. Najafi relies on this conclusion to argue that subsection 2(d) of the Charter must be considered in construing this provision. Had the Division based its findings solely on his participation in Iran, the Charter would not have applied.\n\nWith respect to the KDPI, the Division stated that there is evidence (i) that the KDPI is an international organization with many chapters in various countries including Canada, (ii) that membership in the KDPI in Canada would automatically make a person a member of the KDPI in Iran too, and (iii) that applicants for KDPI party membership in Canada must be approved by the KDPI in Kurdistan (paragraph 24 of the decision).\n\nThe Division rejected the argument that the KDPI had two rival factions or one separate political organization distinct from the military wing. The Division found that in fact the KDPI operated under a unified common structure comprised of sections that are complementary, but functionally distinct, and that the activities of its military wing may be imputed to the organization as a whole and to each member of the organization for the purpose of an inquiry under paragraph 34(1)(f) (paragraph 15 of the decision).", - "current_to": "2014-11-07", + "text": "The first relevant finding of fact is that the individual to whom Mr. Mugesera was speaking in this story was a Tutsi. As Mr. Duquette explained, Mr. Mugesera was speaking to a member of an opposition party, the PL. He referred specifically to the events of 1959 when many Tutsi went into exile, and he mentioned Ethiopia. It is common lore in Rwanda that the Tutsi originated in Ethiopia. This belief was even taught in primary and secondary schools.\n\nThe second relevant finding of fact is that Mr. Mugesera was suggesting at this point that Tutsi corpses be sent back to Ethiopia. Mr. Mugesera argued that he was only telling his audience that, just as the Falasha had left Ethiopia to return to their place of origin, Israel, so should the Tutsi return to Ethiopia. In their case, the return trip would be by way of the Nyabarongo River, which runs through Rwanda toward Ethiopia. This river is not navigable, however, so the return would not be by boat. In earlier massacres, Tutsi had been killed and their bodies thrown into the Nyabarongo River.\n\nThe reference to 1959 is also important, because the group that was exiled then was essentially Tutsi. The “Inyenzi” and the “Inkotanyi” were recruited from this group. Throughout his speech, as we have seen, Mr. Mugesera drew connections between the two groups. Mr. Duquette also found that the speech clearly advocated that these “invaders” and “accomplices” should not be allowed to “get out”, suggesting that the mistake made in 1959 was to drive the Tutsi out of Rwanda, with the result that they were now attacking the country.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-4", + "id": "scc-2273-44", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 11–13", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 94–95", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Second, the Division reviewed the concept of “subversion by force of any government”. It noted that the word “subversion” is not defined in the IRPA, reviewed the jurisprudence of this Court and of the Federal Court, and considered definitions from dictionaries such as Black’s Law Dictionary, 6th edition (paragraphs 27 to 31 of the decision).\n\nThe Division then expressed the view that “subversion by force of a government” may be distinguished by its specific objective from the broader concept of use of force against the state. It specifically involves using force with the goal of overthrowing the government, either in some part of its territory or in the entire country. The Division was also satisfied that the words “any government” include even a despotic regime, and that the government’s actions, however oppressive, are not relevant to the analysis (paragraph 32 of the decision).\n\nIn view of the above, the Division concluded at paragraph 32 of its decision that: While there may be other possible interpretations, I find that the jurisprudence indicates that using force with the goal of overthrowing any government amounts to subversion by force. In making this decision, the Division rejected Mr. Najafi’s argument that “subversion by force of any government” must necessarily refer to the unlawful use of force and that legitimate uses of force in international conflicts such as those set out in the affidavits of his legal experts should not fall within the definition. It found that analysis of the legitimacy or legality of the armed struggle is not called for in the context of an inadmissibility hearing – although it may be very relevant to an application for a ministerial exemption pursuant to subsection 34(2) (now 42.1(1) of the IRPA) (paragraph 33 of the decision).", - "current_to": "2014-11-07", + "text": "Summarizing his findings on the meaning of this paragraph, Mr. Duquette wrote: It is therefore clear that the speaker is a Tutsi and that when Mr. Mugesera says “we will send you down the Nyabarongo”, “you” means the Tutsi and “we”, means the Hutu. It is also obvious that the speaker is impressing on the audience that it was a mistake to drive the Tutsi out of Rwanda in 1959, since they are now attacking the country. Finally, it is clear that he is suggesting that the Tutsi corpses be sent back via the Nyabarongo River. [para. 201] This message was delivered in a public place at a public meeting and would have been clearly understood by the audience.\n\nMr. Duquette concluded that the individual elements of the “river passage” were inconclusive, but that, taken together, they contained a deliberate call for the murder of Tutsi. “When a person says that Tutsis should be thrown into the river as [sic] and is making references to 1959, he is sending out a clear signal” (para. 323). Drawing on these findings of fact, Mr. Duquette held that Mr. Mugesera had advocated the killing of members of an identifiable group distinguished by ethnic origin, namely the Tutsi, with intent to destroy the group in part. (c) Findings in Respect of the Guilty Mind", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-5", + "id": "scc-2273-45", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 14–15", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 96–98", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Thirdly, the Division proceeded to determine whether the KDPI’s objective had been to overthrow the government of Iran. It found that the KDPI advocated and participated in the overthrow of the Shah of Iran and that, later on, the KDPI’s long-term objective of establishing a democratic socialist society within a federal Iran included the replacement of what the KDPI described as the “theocratic dictatorship” of the “reactionary and bloodthirsty regime of [the] Islamic Republic” with a new democratic federal system: the Federal Republic of Iran (paragraphs 34 to 36 of the decision).\n\nThe Division then reviewed the KDPI’s methods. After acknowledging that there was considerable evidence that the KDPI’s use of force had largely been in self-defence, it found that the KDPI nonetheless deliberately used armed force to try to overthrow the Iranian government and that this was part of its strategic repertoire. This was certainly true in the 1967-1968 period, during which it was engaged in an unsuccessful armed uprising against the Shah of Iran. In 1973, the KDPI “committed itself formally to armed struggle”. The Division then noted that the KDPI’s armed conflict with the Iranian government was at its height in 1982 and 1983, during which it was driven out of population centres and forced into guerrilla warfare in the mountains, although it temporarily recaptured the town of Bukan in September 1983 (paragraphs 37 to 41 of the decision).", - "current_to": "2014-11-07", + "text": "On the issue of whether Mr. Mugesera had the requisite mental intent, Mr. Duquette found that “[s]ince he knew approximately 2,000 Tutsis had been killed since October 1, 1990, the context leaves no doubt as to his intent” (para. 323), and that “he intended specifically to provoke citizens against one another” (para. 324). The mens rea for incitement to genocide would not be made out if the finding were that Mr. Mugesera had intended to destroy, in whole or in part, members of his political opposition only. Members of a political group do not fit within the definition set out in s. 318(4) of the Criminal Code . The IAD went further than this and held that Mr. Mugesera had advocated the destruction of Tutsi, a distinct and identifiable ethnic group.\n\nIn discussing the elements of the crime, Mr. Duquette concluded that Mr. Mugesera had attempted to incite citizens to act against each other (which is an element of the offence under s. 166 of the Rwandan Penal Code). He specified that the citizens in question were “either MRND supporters against opposition parties or Hutu against Tutsi” (para. 324). This finding, coupled with the holding that Mr. Mugesera was aware of the ethnic massacres that were taking place, is sufficient to infer the necessary mental element of the crime of incitement to genocide.\n\nThe allegation of incitement to the crime of genocide is well founded. The IAD came to the correct legal conclusion on this question. (3) Incitement to Hatred (a) The Elements of Incitement to Hatred", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-6", + "id": "scc-2273-46", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 16–18", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 99–101", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The Division further noted that from the mid 1980s to early 1990s KDPI forces were in control of the countryside with support from the Kurdish population while the Iranian forces held the cities. It found that the KDPI did attack Iranian forces within areas under KDPI control prior to the KDPI mid-1990s withdrawal of its armed forces from the Iranian territory (paragraphs 41 to 42 of the decision).\n\nThe Division concluded that overall the evidence provided by both parties was sufficient to meet the low threshold of establishing reasonable grounds to believe that the KDPI has engaged in or instigated the subversion by force of a government (paragraph 43 of the decision).\n\nThe Division rejected Mr. Najafi’s argument that the KDPI had expressly given up any form of violence, stating that the KDPI still maintains a military wing that trains in war tactics. It also held that after the alleged renunciation of violence, there was some evidence of continued KDPI guerrilla attacks within Iran. Thus, even if one were to accept that there was an exception where “a violent organization has transformed itself into a legitimate political party and has expressly given up any form of violence”, this exception would not apply to the KDPI in this case (paragraphs 11 to 13 of the decision).", - "current_to": "2014-11-07", + "text": "The Minister alleged as a further ground for the deportation of Mr. Mugesera that he committed the crime of incitement to hatred. Section 319 of the Criminal Code proscribes this offence in the following terms: 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of [an offence]. (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of [an offence].\n\nSection 319 creates two distinct offences in relation to the incitement of hatred against an identifiable group. Under subs. (1), an offence is committed if such hatred is incited by the communication, in a public place, of statements likely to lead to a breach of the peace. Under subs. (2), an offence is committed only by wilfully promoting hatred against an identifiable group through the communication of statements other than in private conversation. “Identifiable group” has the same meaning as in s. 318.\n\n“Promotes” means actively supports or instigates. More than mere encouragement is required: R. v. Keegstra, [1990] 3 S.C.R. 697. Within the meaning of s. 319, “hatred” connotes “emotion of an intense and extreme nature that is clearly associated with vilification and detestation”: Keegstra, at p. 777. Only the most intense forms of dislike fall within the ambit of this offence.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-7", + "id": "scc-2273-47", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 19–20", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 102–103", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The Division rejected Mr. Najafi’s argument that paragraph 34(1)(f) should not be read to include a lawful organization in Canada that has not engaged in unlawful activities outside of Canada because this would constitute a violation of his constitutional right to freedom of association (section 2(d) of the Charter). The Division found that Mr. Najafi can continue to live in Canada and participate freely in the KDPI if he wishes, and he can apply for a ministerial exemption pursuant to subsection 34(2) of the IRPA. Thus, it held that it cannot be assumed that holding Mr. Najafi inadmissible on the basis of paragraph 34(1)(f) of the IRPA would have “any significant negative legal consequences for him, let alone any sufficient to constitute a breach of his Charter rights” (paragraphs 16 to 18 of the decision).\n\nThe judge summarizes her findings at paragraph 7 of her reasons, reported under the neutral citation 2013 FC 876 (the Reasons) as follows: For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined that the applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonably held that the KDPI had engaged in “subversion by force” of the Iranian governments. Insofar as concerns the applicant’s invocation of international law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from the settled interpretation of section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed. (i) Paragraph 34(1)(b) and International law", - "current_to": "2014-11-07", + "text": "The offence does not require proof that the communication caused actual hatred. In Keegstra, this Court recognized that proving a causal link between the communicated message and hatred of an identifiable group is difficult. The intention of Parliament was to prevent the risk of serious harm and not merely to target actual harm caused. The risk of hatred caused by hate propaganda is very real. This is the harm that justifies prosecuting individuals under this section of the Criminal Code (p. 776). In the Media Case, the ICTR said that “[t]he denigration of persons on the basis of their ethnic identity or other group membership in and of itself, as well as in its other consequences, can be an irreversible harm” (para. 1072).\n\nIn determining whether the communication expressed hatred, the court looks at the understanding of a reasonable person in the context: Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5 (B.C.H.R.T.), at para. 247. Although the trier of fact engages in a subjective interpretation of the communicated message to determine whether “hatred” was indeed what the speaker intended to promote, it is not enough that the message be offensive or that the trier of fact dislike the statements: Keegstra, at p. 778. In order to determine whether the speech conveyed hatred, the analysis must focus on the speech’s audience and on its social and historical context. An abstract analysis would fail to capture the speaker’s real message.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-8", + "id": "scc-2273-48", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 21–23", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 104–106", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "In Part III of her reasons, starting at paragraph 52, the judge deals with Mr. Najafi’s argument that “subversion by force of any government” (paragraph 34(1)(b) of the IRPA) cannot be construed as including the KDPI’s use of force against the Iranian government because it was legitimate to use such force under international law.\n\nAfter summarizing Mr. Najafi’s expert evidence (paragraphs 54 and 55 of the Reasons), the judge ruled that she had to determine three issues, namely: i) What standard of review is applicable? ii) Did the Division commit a reviewable error in failing to consider international law; and iii) If so, does international law mandate the interpretation Mr. Najafi advances?\n\nIn respect of the first issue, the judge acknowledged that the most recent decisions of the Supreme Court of Canada would normally mandate that deference be afforded to the Division’s interpretation of its home statute or one closely related to its function. She then considered that a long line of authority shows that determining whether the actions of an individual or an organization fall within the scope of paragraph 34(1)(b) is a question of mixed fact and law and that the two requirements (the factual and legal interpretation of the words “subversion by force of any government”) are not to be uncoupled (paragraph 59 of the Reasons). Furthermore, she notes the similarity between the question before her and the one before this Court in B010 v. Canada (Citizenship and Immigration), 2013 FCA 87 [B010] (paragraphs 58 to 60 of the Reasons).", - "current_to": "2014-11-07", + "text": "In a passage in R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), at pp. 384-85, cited with approval by this Court in Keegstra, Martin J.A. compared the two subsections of s. 319 and concluded that the guilty mind required by subs. (1) is something less than intentional promotion of hatred. On the other hand, the use of the word “wilfully” in subs. (2) suggests that the offence is made out only if the accused had as a conscious purpose the promotion of hatred against the identifiable group, or if he or she foresaw that the promotion of hatred against that group was certain to result and nevertheless communicated the statements. Although the causal connection need not be proven, the speaker must desire that the message stir up hatred.\n\nIn Keegstra, at p. 778, this Court found that “[t]o determine if the promotion of hatred was intended, the trier will usually make an inference as to the necessary mens rea based upon the statements made.” In many instances, evidence of the mental element will flow from the establishment of the elements of the criminal act of the offence. The speech will be such that the requisite guilty mind can be inferred.\n\nAs is the case with the crime of incitement to genocide, the crime of incitement to hatred requires the trier of fact to consider the speech objectively but with regard for the circumstances in which the speech was given, the manner and tone used, and the persons to whom the message was addressed. (b) Findings in Respect of the Criminal Act and the Guilty Mind", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-9", + "id": "scc-2273-49", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 24–26", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 107–109", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The judge concluded from this analysis that the Division’s finding regarding the applicability of paragraph 34(1)(b) is to be reviewed on the reasonableness standard. However, the judge expressly held that the selection of the standard of review is not determinative. She found that the Division’s interpretation of paragraph 34(1)(b) is not just reasonable, it is also correct (paragraph 61 of the Reasons).\n\nTurning to the second issue under this heading – did the Division err in not considering international law – the judge found that the context shows that “Parliament intended that the balancing of the soundness of motive for the use of force be a matter for consideration by the Minister under subsection 34(2) of the IRPA and not for the Division under subsection 34(1)” (paragraph 68 of the Reasons).\n\nThe judge based this conclusion on her analysis of the wording of the paragraph in the context of the section as a whole, including the legislative history (paragraphs 64 to 67). She also found support for her interpretation of paragraph 34(1)(b) in the case law and in the fact that the presumption that the legislator intended to comply with international law cannot be used to override clear provisions of a statute. Therefore, in her view, the Division did not err in declining to consult international law to construe paragraph 34(1)(b) (paragraphs 69-73).", - "current_to": "2014-11-07", + "text": "Based on his findings of fact, Mr. Duquette concluded that the allegation of incitement to hatred was well founded. We agree. Mr. Mugesera’s speech targeted Tutsi and encouraged hatred of and violence against that group. His use of violent language and clear references to past ethnic massacres exacerbated the already vulnerable position of Tutsi in Rwanda in the early 1990s. The IAD’s analysis of the speech supports the inference that Mr. Mugesera intended to incite hatred.\n\nMr. Duquette’s findings of fact reveal that each element of the offences of incitement to murder, to hatred and to genocide has been made out. We are of the opinion that, based on the balance of probabilities, Mr. Mugesera committed the proscribed acts and is therefore inadmissible to Canada by virtue of ss. 27(1)(a.1)(ii) and 27(1)(a.3)(ii) of the Immigration Act. To this extent, we disagree with the reasons of the FCA on this subject.\n\nThe FCA erred in adopting the reasonable observer standard from Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85, and Société St‑Jean-Baptiste de Montréal v. Hervieux-Payette, [2002] R.J.Q. 1669 (C.A.). It failed to acknowledge that the audience to which a speech is addressed is a relevant factor in determining the nature of the speech itself. If the manner in which the audience is likely to perceive the speech is not taken into account, the harm targeted by these offences may not be prevented.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-10", + "id": "scc-2273-50", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 27–29", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 110–112", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The judge also went further and found that even if she were wrong concerning how international law was to be handled, Mr. Najafi did not establish that international law recognizes the use of force in furtherance of self-determination in the manner suggested (paragraphs 74–79 of the Reasons). Among other things, the judge ruled that Mr. Najafi does not fall within the definition of “combatant” as he never performed a “continuous combat function”. She also found that in light of section 25 (the ministerial exemption based on humanitarian and compassionate considerations) and subsection 34(2) of the IRPA, Canada could not be found in contravention of its international obligations simply because Mr. Najafi was found inadmissible under subsection 34(1) of the IRPA (paragraphs 74 to 79 of the Reasons). (ii) Section 2(d) of the Charter\n\nIn paragraphs 23 to 51 of her reasons, the judge analysed Mr. Najafi’s submission that the Division’s interpretation violates right to freedom of association under section 2(d) of the Charter and, thus, offends the presumption that Parliament intended the IRPA to operate in accordance with the Charter.\n\nThe Division construed paragraph 34(1)(f) without reference to this presumption of compliance with the Charter because, in its view, the matter did not engage a constitutional right.", - "current_to": "2014-11-07", + "text": "The FCA’s conclusions were predicated upon its own interpretation of the speech. Because he attributed a purely political nature to the speech, Décary J.A. found that it did not incite hatred or genocide: In the case at bar, for the reasons I have given above, the message communicated by Mr. Mugesera is not, objectively speaking — that is, after analysing the speech and its context as a whole — a message inciting to murder, hatred or genocide. Nor is it such a message subjectively speaking, as there is nothing in the evidence to suggest that Mr. Mugesera intended under cover of a bellicose speech, that would be justified in the circumstances, to impel toward racism and murder an audience which he knew would be inclined to take that route. There is simply no evidence, on a balance of probabilities, that Mr. Mugesera had any guilty intent. [para. 210]\n\nThe FCA failed to take account of the nature of the target audience, which is an important contextual factor, and consequently erred in relying on an abstract “reasonable listener”. This led it to err in its characterization of the nature of the speech. As a result, the FCA erred in law in finding that the speech of November 22, 1992 did not constitute an incitement to murder, genocide, or hatred. C. Crimes Against Humanity\n\nHaving concluded that the FCA improperly substituted its own findings of fact for those of the IAD and failed to consider the appropriate legal test in characterizing Mr. Mugesera’s speech, we must now move to the final issue raised on this appeal: whether there are reasonable grounds to believe that Mr. Mugesera committed a crime against humanity and is therefore inadmissible to Canada by virtue of s. 19(1)(j) of the Immigration Act. This ground is raised by the Minister’s allegation C.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-11", + "id": "scc-2273-51", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 30–31", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 113–114", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "On this issue, the judge applied the standard of correctness, and rejected the Minister’s argument that the reasonableness standard set out by the Supreme Court of Canada in Doré v. Le Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 applied [Doré]. In her view, the deferential standard of reasonableness does not apply when the Division is called upon to make substantive findings on Charter rights, which is what happened here. The judge further noted that the role of the Division is entirely different from that of the Minister under subsection 34(2). In her view, it is only in the latter case – when the Minister is exercising his statutory discretion – that the decision will be reviewable under the reasonableness standard for compliance with the Charter in accordance with Doré (paragraphs 32 and 36 of her Reasons).\n\nIn respect of the merits of Mr. Najafi’s argument, the judge relied on Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, and Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, to reject the Minister’s argument that section 2(d) was not engaged at all because this matter only involved the removal of legislated benefits (see paragraph 11 of the Reasons, in which the judge describes the impact of the Division’s decision on Mr. Najafi).", - "current_to": "2014-11-07", + "text": "Section 19(1)(j) of the Immigration Act provides: 19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission. Section 19(1)(j) therefore requires that we consider two essential questions in this case. First, what is meant by “reasonable grounds to believe”? Second, what is a crime against humanity within the meaning of ss. 7(3.76) and 7(3.77) of the Criminal Code ? What are the elements of this crime? (1) The Standard of Proof: Reasonable Grounds to Believe\n\nThe first issue raised by s. 19(1)(j) of the Immigration Act is the meaning of the evidentiary standard that there be “reasonable grounds to believe” that a person has committed a crime against humanity. The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada (Minister of Citizenship & Immigration) (2000), 9 Imm. L.R. (3d) 61 (F.C.T.D.).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-12", + "id": "scc-2273-52", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 32", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 115–116", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The judge agreed with the Minister that the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh] offers much guidance in respect of Mr. Najafi’s submissions in this case. She first noted that in Suresh, the Supreme Court of Canada held that freedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence. In her view, the Supreme Court of Canada also gave short shrift to Mr. Suresh’s argument that all his activities in Canada were perfectly legal. Finally, she relied on the following passage of Suresh, which dealt with section 19 (the predecessor to section 34): We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.", - "current_to": "2014-11-07", + "text": "In imposing this standard in the Immigration Act in respect of war crimes and crimes against humanity, Parliament has made clear that these most serious crimes deserve extraordinary condemnation. As a result, no person will be admissible to Canada if there are reasonable grounds to believe that he or she has committed a crime against humanity, even if the crime is not made out on a higher standard of proof.\n\nWhen applying the “reasonable grounds to believe” standard, it is important to distinguish between proof of questions of fact and the determination of questions of law. The “reasonable grounds to believe” standard of proof applies only to questions of fact: Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 311. This means that in this appeal the standard applies to whether Mr. Mugesera gave the speech, to the message it conveyed in a factual sense and to the context in which it was delivered. On the other hand, whether these facts meet the requirements of a crime against humanity is a question of law. Determinations of questions of law are not subject to the “reasonable grounds to believe” standard, since the legal criteria for a crime against humanity will not be made out where there are merely reasonable grounds to believe that the speech could be classified as a crime against humanity. The facts as found on the “reasonable grounds to believe” standard must show that the speech did constitute a crime against humanity in law.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-13", + "id": "scc-2273-53", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 33–34", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 117", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The judge then reviewed the most relevant Federal Court decisions since Suresh. Having acknowledged Mr. Najafi’s argument that these cases, as well as Suresh, are distinguishable on their facts, the judge nevertheless found that all of these cases support the principle that section 2(d) of the Charter does not protect membership in organizations that use violence. All agree that the KDPI engaged in violence many years as part of its campaign to overthrow two different regimes in Iran.\n\nHaving satisfied herself that there would be no violation of Mr. Najafi’s constitutional rights, the judge notes that it was unnecessary to go on to discuss the rationale offered by the Division.", - "current_to": "2014-11-07", + "text": "The evidence reviewed and relied upon by Mr. Duquette of the IAD clearly meets the “reasonable grounds to believe” standard in that it consists of compelling and credible information that provides an objective basis for his findings of fact. Based on these findings of fact, therefore, we must determine the question of law raised by s. 19(1)(j) of the Immigration Act in this case: whether the facts as found on the reasonable grounds to believe standard show that the speech did constitute a crime against humanity in law. (2) The Elements of a Crime Against Humanity", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-14", + "id": "scc-2273-54", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 35", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 118", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "At the relevant time, the sections of the IRPA of interest read as follows: 3. (1) The objectives of this Act with respect to immigration are 3. (1) En matière d’immigration, la présente loi a pour objet : (h) to protect public health and safety and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (3) This Act is to be construed and applied in a manner that (3) 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. 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34.", - "current_to": "2014-11-07", + "text": "At the time relevant to this appeal, crimes against humanity were defined in and proscribed by ss. 7(3.76) and 7(3.77) of the Criminal Code , which provided: 7. . . . (3.76) For the purposes of this section, . . . “crime against humanity” means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations; . . . (3.77) In the definitions “crime against humanity” and “war crime” in subsection (3.76), “act or omission” includes, for greater certainty, attempting or conspiring to commit, counselling any person to commit, aiding or abetting any person in the commission of, or being an accessory after the fact in relation to, an act or omission. Sections 7(3.76) and 7(3.77) of the Criminal Code have since been repealed. Crimes against humanity are now defined in and proscribed by ss. 4 and 6 of the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 . Those sections define crimes against humanity in a manner which differs slightly from the definition in the sections of the Criminal Code relevant to this appeal. However, the differences are not material to the discussion that follows.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-15", + "id": "scc-2273-55", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 35", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 119–121", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. [Repealed, 2013, c. 16, s. 13] (as mentioned earlier, section 34(2) was repealed and a new version enacted in subsection 42.1(1) of the IRPA in June 2013).", - "current_to": "2014-11-07", + "text": "As we shall see, based on the provisions of the Criminal Code and the principles of international law, a criminal act rises to the level of a crime against humanity when four elements are made out: 1. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act); 2. The act was committed as part of a widespread or systematic attack; 3. The attack was directed against any civilian population or any identifiable group of persons; and 4. The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.\n\nDespite relying on essentially the same authorities, the lower courts and the tribunal in this appeal were inconsistent in their identification and application of the elements of a crime against humanity under s. 7(3.76) of the Criminal Code . We will now briefly review their views on these questions.\n\nFor the IAD, Mr. Duquette, relying on this Court’s decision in R. v. Finta, [1994] 1 S.C.R. 701, found that a crime against humanity must be committed against a civilian population or an identifiable group, must be cruel and must shock the conscience of all right-thinking people (para. 335). He also held that the individual who commits the crime must be aware of the circumstances which render the act inhumane and must be motivated by discriminatory intent (paras. 337-38). To these requirements, he added, relying on Sivakumar, that crimes against humanity must occur on a widespread and systematic basis (para. 339).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-16", + "id": "scc-2273-56", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 35–39", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 122–123", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national. [Abrogé, 2013, ch. 16, art. 13] (Tel que déjà mentionné, le paragraphe 34(2) a été abrogé et une nouvelle version adoptée au paragraphe 42.1(1) de la LIPR en juin 2013).\n\nThe judge certified the question set out in paragraph 2 above. Mr. Najafi states in the conclusion of his memorandum (at paragraph 116) that this question should be answered in the affirmative. However, in his memorandum (see paragraphs 2 to 5, 54 and 92 to 114) and, at the hearing before us, he never addressed the question as formulated by the judge.\n\nMr. Najafi reformulates the substantive questions to be reviewed on appeal as follows: Did the Court err in its assessment of the Division’s failure to apply international law principles to its interpretation of “subversion by force” in section 34(1)(b) of the IRPA? Did the Court err in its assessment of the Appellant’s arguments on subversion by force of any government?\n\nAlso, Mr. Najafi raises the following question in his memorandum: Did the Applications judge err in law by finding that the Tribunal decision did not breach the Appellant’s section 2(d) right to freedom of association under the Charter? However, as I explain in paragraphs 99 and 100 below, my focus will be on the interpretation of paragraph 34(1)(f) of the IRPA.\n\nMr. Najafi does not challenge any of the Division’s factual findings. Indeed, Mr. Najafi relies on the Division’s finding that he was a member of the KDPI to support his submission on the issues referred to above, particularly his argument based on section 2(d) of the Charter.", - "current_to": "2014-11-07", + "text": "Applying these principles to the facts, Mr. Duquette concluded that counselling murder, even where no murder is subsequently committed, is sufficient to constitute a crime against humanity, particularly where murders have been happening on a widespread and systematic basis (para. 344). In his opinion, Mr. Mugesera had acted with discriminatory intent, and was an educated man who was aware of his country’s history, the current political situation and the fact that civilians were being massacred (para. 338). He was therefore aware of the circumstances which rendered his speech a crime against humanity.\n\nNadon J., reviewing the IAD’s decision, did not elaborate on the elements of a crime against humanity. He limited his consideration of the issue to finding that Mr. Duquette had erred in law because Mr. Mugesera’s counselling of murder and incitement to hatred, absent proof that actual murders had ensued, was not sufficiently “cruel and terrible” to constitute a crime against humanity (paras. 55-56). Nadon J. relied on this Court’s decision in Finta, at p. 814, to support the proposition that the alleged acts must show an added degree of inhumanity.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-17", + "id": "scc-2273-57", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 40–42", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 124–125", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "It is trite law that the threshold for certifying a question is: is there “a serious question of general importance which would be dispositive of an appeal”, (Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 at paragraph 11).\n\nIt is worth reproducing again the question certified by the judge: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nAt paragraph 90 of the Reasons, the judge states very clearly that the question she was willing to certify concerns the interplay of the right alleged to exist under international law and the interpretation to be afforded to paragraph 34(1)(b) of the IRPA. However, if one takes the certified question literally, it is evident that international law does not require any exclusion, for it normally has no direct application in the domestic law of Canada. Moreover, this would not constitute a serious question, given that the role of international law in the interpretation of statutes i.e., the interplay between the two) has been discussed in several decisions of the Supreme Court of Canada and of this Court, including decisions dealing specifically with the IRPA. The established principles are of general application. Thus, they do apply to the interpretation of paragraph 34(1)(b) of the IRPA.", - "current_to": "2014-11-07", + "text": "Décary J.A., for the FCA, who apparently also drew on Finta and Sivakumar, reached an entirely different outcome, both on the law and on its application to the facts. He found that a crime against humanity must occur in the context of a widespread or systematic attack directed against a civilian population with discriminatory intent (para. 57). Having set aside the IAD’s findings of fact, he concluded that there was no evidence that the speech had taken place in the context of a widespread or systematic attack, since the massacres which had occurred to that point were not part of a common plan and since there was no evidence that Mr. Mugesera’s speech was part of an overall strategy of attack (para. 58).\n\nThe decisions below leave no doubt as to the existence of a great deal of confusion about the elements of a crime against humanity. Though this Court has commented on the issue in the past, most notably in Finta, it is apparent that further clarification is needed.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-18", + "id": "scc-2273-58", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 43–47", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 126–127", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "These principles are summarized in Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), chapter 20 (“Construction of Statutes, 2008”). As noted by the author at page 537, international law is generally used as an aid in interpreting domestic legislation. Both parties agree that the presumption that the legislator intended to comply with Canada’s international law obligations is rebuttable.\n\nThis may well explain why, as mentioned earlier, Mr. Najafi reformulated the questions to be answered in respect of paragraph 34(1)(b) (see paragraph 37 above).\n\nThat said, the judge’s intent becomes clear when one considers her comments in context - both the Division and the judge concluded that the presumption referred to above was rebutted without the need to consider and assess the content of international law because of the clear and unambiguous wording of paragraph 34(1)(b).\n\nFrom this, I understand that the question to be answered by this Court is: Can paragraph 34(1)(b) of the IRPA be interpreted to exclude from its ambit the alleged right to use force in an attempt to subvert a certain type of government in furtherance of an oppressed people’s claimed right to self-determination assuming that such right is recognized under Protocol I of the Geneva Conventions of 1949?\n\nIn this case, the only relevant international human rights instrument to which Canada is a signatory, within the meaning of paragraph 3(3)(f) of the IRPA, is the Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ratified by Canada in 1990 (“Protocol I”).", - "current_to": "2014-11-07", + "text": "Since Finta was rendered in 1994, a vast body of international jurisprudence has emerged from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the ICTR. These tribunals have generated a unique body of authority which cogently reviews the sources, evolution and application of customary international law. Though the decisions of the ICTY and the ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislative provisions, such as ss. 7(3.76) and 7(3.77) of the Criminal Code , which expressly incorporate customary international law. Therefore, to the extent that Finta is in need of clarification and does not accord with the jurisprudence of the ICTY and the ICTR, it warrants reconsideration.\n\nCrimes against humanity, like all crimes, consist of two elements: (1) a criminal act; and (2) a guilty mind. Each must be considered. (a) The Criminal Act of a Crime Against Humanity", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-19", + "id": "scc-2273-59", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 48–50", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 128–129", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "It is well known that the Geneva Conventions to which Protocol I relates and Protocol I itself are intended to protect the civilian population during an armed conflict as defined therein as well as the rights and obligations of “combatants” within the meaning of Protocol I and the Geneva Conventions. Thus, these instruments generally deal with what is often referred to in international law as jus in bello (conduct of war) as opposed to jus ad bellum (the right to wage war).\n\nThe international law issue that is relevant in this appeal is not whether international law recognizes the right of oppressed peoples to self-determination. That concept is not disputed. It was considered in Reference re Secession of Quebec, [1998] 2 S.C.R. 217.\n\nRather, the focus is on whether force can be used to achieve external self-determination against colonial domination, or alien occupation and racist regimes. As acknowledged during the hearing, Mr. Najafi’s experts do not rely on an alleged customary rule of international law in that respect. In fact, in his affidavit, René Provost, at paragraph 34, clearly states that: 34. The manner by which a people can arrive at and express a choice under its right to external self-determination is not clearly stipulated by international law.", - "current_to": "2014-11-07", + "text": "It can be seen from s. 7(3.76) of the Criminal Code that the criminal act (actus reus) of a crime against humanity consists in the commission of one of the enumerated proscribed acts which contravenes customary or conventional international law or is criminal according to the general principles of law recognized by the community of nations. The requirement that the enumerated proscribed acts contravene international law concerns the context in which the enumerated acts occur. According to customary international law, a proscribed act will constitute a crime against humanity where it is committed as part of a widespread or systematic attack directed against any civilian population. Therefore, the criminal act of a crime against humanity is made up of three essential elements: (1) one of the enumerated proscribed acts is committed; (2) the act occurs as part of a widespread or systematic attack; and (3) the attack is directed against any civilian population or any identifiable group. We will consider each element in turn. (i) The Proscribed Act\n\nThe proscribed acts listed in s. 7(3.76) of the Criminal Code provide a first and essential requirement for a crime against humanity: an “underlying offence” must be committed. In essence, the listed acts represent the different ways in which a crime against humanity can be committed. This means that various acts may become crimes against humanity as long as the other elements of the offence are met. In s. 7(3.76) those crimes are murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-20", + "id": "scc-2273-60", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 51–53", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 130–131", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Mr. Najafi’s position appears to be that in this very narrow set of circumstances, the legality of an oppressed people’s use of force to exercise the right to self-determination is positively affirmed in binding treaties. Mr. Najafi’s experts point only to Protocol I in support of this assertion (see for example René Provost’s affidavit at paragraph 41). The argument is that the use of force (i.e., violence) by the KPDI is therefore legitimate, and as such, cannot fall within the ambit of “subversion by force of any government” within the meaning of paragraph 34(1)(b).\n\nI do not understand Mr. Najafi to say that Protocol I or the Geneva Conventions contain any provision dealing specifically with the right of combatants to be granted entry to the signatories’ territories. Neither Protocol I nor the Geneva Conventions requires the signatories to grant any type of immigration status to these combatants or anybody else in their countries. As a matter of fact, there is no such provision.\n\nHence, nobody actually argues that by setting out an inadmissibility provision such as paragraph 34(1)(b) in the IRPA, Canada would be in violation of Protocol I or the Geneva Conventions.", - "current_to": "2014-11-07", + "text": "Establishing an enumerated act involves showing that both the physical element and the mental element of the underlying act have been made out. For instance, where the accused is charged with murder as a crime against humanity, the accused must (1) have caused the death of another person, and (2) have intended to cause the person’s death or to inflict grievous bodily harm that he or she knew was likely to result in death. Once this has been established, the court will go on to consider whether the murder was committed in the context of a widespread or systematic attack directed against a civilian population or an identifiable group; this requirement is discussed more fully below.\n\nThe question we must now consider is whether, as alleged by the Minister, Mr. Mugesera’s speech satisfies the initial criminal act requirement for a crime against humanity. We have found that the speech counselled murders which were not committed and incited hatred and genocide. This raises two issues: whether counselling a murder that is not committed meets the initial criminal act requirement for murder as a crime against humanity and whether speech inciting hatred meets the initial criminal act requirement for persecution as a crime against humanity. 1. Counselling an Enumerated Act That Is Not Committed and Murder as a Crime Against Humanity", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-21", + "id": "scc-2273-61", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 54–56", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 132–133", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "This is in contrast to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which expressly deals with the grant of a specific status – refugee status. As mentioned, Mr. Najafi still has refugee status, despite the fact that he was found to be inadmissible. It is worth reiterating that inadmissibility should not be confused with removal; these are two distinct concepts. It is not disputed that Mr. Najafi cannot be removed without additional substantive steps being taken in accordance with the provisions in the IRPA meant to ensure protection against “refoulement” as set out in the Refugee Convention.\n\nIn this appeal, this Court’s role is to assess whether the judge chose the appropriate standard of review for each of the questions before her and whether she applied them properly (Agraira v. Canada (Public Safety and Emergency Preparedness, 2013 SCC 36 at paragraphs 45 to 47 [Agraira]).\n\nTurning now to the standard chosen by the judge, I agree with her analysis that there is no basis, in the present context, for ousting the presumption that deference should be afforded to the Division’s interpretation of its home statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paragraph 34, Agraira at paragraph 50, McLean v. British Columbia (Securities Commission), 2013 SCC 67 at paragraphs 20 to 21, 33). This is especially so when one considers that the issue here is not whether the Division improperly interpreted an international instrument or a rule of customary international law. Rather, it is whether it erred in concluding that the legitimacy of the use of force is not an issue to be considered because of the clear and unambiguous language of paragraph 34(1)(b) of the IRPA.", - "current_to": "2014-11-07", + "text": "The first question raised on the facts of this appeal is whether the fact that Mr. Mugesera counselled the commission of murders that were not committed meets the initial criminal act requirement for a crime against humanity. Section 7(3.77) of the Criminal Code provides that “counselling” an act listed in s. 7(3.76) will be sufficient to meet the requirement. Murder is one of the acts listed in s. 7(3.76). Mr. Duquette found, as a matter of fact, that Mr. Mugesera’s speech counselled the commission of murders. His findings of fact are sufficient to conclude, as discussed above, that Mr. Mugesera satisfied both the physical and mental elements of the “underlying offence” of counselling a murder that is not committed.\n\nThis does not end our analysis, however. As we noted above, s. 7(3.76) expressly incorporates principles of customary international law into the domestic formulation of crimes against humanity. We must therefore go further and consider whether the prevailing principles of international law accord with our initial analysis. A review of the jurisprudence of the ICTY and the ICTR suggests that it does not.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-22", + "id": "scc-2273-62", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 57–60", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 134–135", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "This means that to determine if the judge applied the standard appropriately, I must assess whether on the appropriate contextual and purposive analysis of paragraph 34(1)(b), the interpretation adopted by the Division is within the range of possible, acceptable outcomes.\n\nBefore embarking on my analysis of the Division’s interpretation of paragraph 34(1)(b), I will deal briefly with two arguments put forth by Mr. Najafi.\n\nFirst, at the hearing, Mr. Najafi submitted that, as a matter of principle, neither the Division nor the judge could conclude that the presumption of compliance was ousted before examining his expert evidence on the legitimacy of the KDPI’s use of force. Second, he argued that again, as a matter of principle, to oust the presumption referred to above, the legislator must expressly state that its international obligations should be disregarded (memorandum of fact and law, paragraph 93).\n\nWith respect to the first question, it is clear that like any decision-maker tasked with statutory interpretation, the Division must apply the Driedger modern approach to statutory interpretation (Construction of Statutes, 2nd Edition, 1983 at page 87): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.", - "current_to": "2014-11-07", + "text": "The statutes of the ICTY and the ICTR (U.N. Doc. S/RES/827 (1993) and U.N. Doc. S/RES/955 (1994), respectively) do not use the word “counselling”. This does not mean, however, that the decisions of these courts cannot be informative as to the requirements for counselling as a crime against humanity. Both statutes provide that persons who “instigate” the commission of a proscribed act may be liable under international law. This Court found in Sharpe, at para. 56, that counselling refers to active inducement or encouragement from an objective point of view. The ICTR has found that instigation “involves prompting another to commit an offence”: Akayesu, Trial Chamber, at para. 482. The two terms are clearly related. As a result, we may look to the jurisprudence of the ICTY and the ICTR on instigation in determining whether counselling an offence that is not committed will be sufficient to satisfy the initial criminal act requirement for a crime against humanity under s. 7(3.76) of the Criminal Code .\n\nIn Prosecutor v. Rutaganda, Case No. ICTR-96-3-T (Trial Chamber I), 6 December 1999, the ICTR conducted a review of the jurisprudence of the ICTY and the ICTR on individual criminal responsibility. The ICTR found that instigation (other than of genocide) involves (1) direct and public incitement to commit a proscribed act; but (2) only where it has led to the actual commission of the instigated offence: para. 38; see also Akayesu, Trial Chamber, at para. 482. It should be noted that the second requirement does not mean that the offence would not have been committed “but for” the instigation. However, a sufficient causal link must be made out: Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T (ICTY, Trial Chamber III), 26 February 2001, at para. 387.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-23", + "id": "scc-2273-63", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 61–62", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 136–139", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "International law may be an important part of the legal context, but it is only one of many factors and presumptions that are considered in applying this modern approach. In my view, relevant international law, like other relevant elements of the legal context, should ideally be taken into account before concluding whether or not a text is clear or ambiguous. I note that this is also the view expressed in Construction of Statutes, 2008 at page 547 but as mentioned by the author, many courts still consider ambiguity a prerequisite.\n\nThat said, the modern approach is contextual. There is therefore no single way to apply it. Indeed, there may be cases where the other factors of the relevant context are so strongly in favour of a particular interpretation that international law could only have little to no impact. In such cases, a decision-maker may not be required to go through the exercise of assessing the evidence before it, particularly when what is argued is not really a direct violation of an international instrument to which Canada is a signatory, or does not involve a particularly well established rule of customary international law.", - "current_to": "2014-11-07", + "text": "Mr. Duquette of the IAD was unable to find that the commission of murders had actually occurred as a result of Mr. Mugesera’s counselling. An interpretation of ss. 7(3.76) and 7(3.77) of the Criminal Code in light of customary international law shows that Mr. Mugesera’s counselling of murder was not sufficient to satisfy the initial criminal act requirement for a crime against humanity. 2. Speech That Incites Hatred and Persecution as a Crime Against Humanity\n\nAs discussed above, the facts on this appeal raise a second question: can a speech that incites hatred, which as we have seen Mr. Mugesera’s speech did, meet the initial criminal act requirement for persecution as a crime against humanity? Once again, the express incorporation of customary international law into s. 7(3.76) suggests that we should consider the jurisprudence of the ICTY and the ICTR in formulating an answer.\n\nBoth the ICTR and the ICTY have approached the question of speech inciting hatred as relating to the enumerated act of “persecution”. Persecution is expressly listed in s. 7(3.76) of the Criminal Code as one of the underlying acts which, in the appropriate circumstances, may constitute a crime against humanity.\n\nDetermining whether an act constitutes persecution can be difficult. Persecution, unlike the other acts enumerated in s. 7(3.76), is not a stand-alone crime in Canadian law or in the legal systems of other countries: M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed. 1999), at p. 327. In contrast with murder, for instance, it is not evident from our domestic law what types of acts will constitute persecution.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-24", + "id": "scc-2273-64", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 63–64", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 140–141", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Moreover, recently, the Supreme Court of Canada in Németh v. Canda (Justice), 2010 SCC 56, [2010] 3 S.C. R. 281 [Németh], made the point that section 115 of the IRPA, read in the context of the statute as a whole, was clear, before it reviewed the extent of Canada’s obligations under the Refugee Convention. Thereafter, having reviewed the Refugee Convention and concluded that it provided for more than what was reflected by the meaning it earlier ascribed to section 115, the Court simply said that the clear meaning of the section must be given effect as the presumption of compliance with international law is rebuttable (paragraphs 31, 34 and 35).\n\nTurning to Mr. Najafi’s second argument, I cannot agree that the legislator must expressly state in the provision at issue that its international obligations should be overcome. If it were so, the Supreme Court of Canada could not have reached the conclusion that it did in Németh that section 115 of the IRPA does not address removal by extradition when it was acknowledged that the ordinary meaning of the words used in the section, “removed from Canada”, could include extradition as a form of removal. Thus, the matter is not one of principle. Rather, it is simply a question of properly applying the contextual approach, taking into consideration the words of paragraph 34(1)(b) (in French and English) and reading them in their entire context harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. In assessing the reasonableness of the Division’s interpretation, I will now proceed in this way.", - "current_to": "2014-11-07", + "text": "As a result, both the physical and mental elements (criminal act and guilty mind) of persecution have been considered at great length by the ICTY and the ICTR. In considering the criminal act of persecution in Prosecutor v. Tadic, 112 ILR 1 (Trial Chamber II 1997), the ICTY, having reviewed the relevant jurisprudence and academic commentary, found that persecution “is some form of discrimination [on traditionally recognized grounds such as race, religion, or politics] that is intended to be and results in an infringement of an individual’s fundamental rights” (para. 697).\n\nA danger arises, however, that the criminal act of persecution, as so defined, might apply to acts that are far less serious than the other forms of crimes against humanity. Crimes against humanity should not be trivialized by applying the concept to fact situations which do not warrant the full opprobrium of international criminal sanction. Thus, the ICTY found in Prosecutor v. Kupreskic, Case No. IT-95-16-T (Trial Chamber II) 14 January 2000, that the alleged persecution, in order to satisfy the criminal act requirement, must reach the same level of gravity as the other enumerated underlying acts. Persecution as a crime against humanity must constitute a “gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited” (para. 621).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-25", + "id": "scc-2273-65", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 65–67", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 142–143", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted by the Division, the word “subversion” is not defined in the Act, and there is no universally adopted definition of the term. The Black’s Law Dictionary’s definition to which the Division refers at paragraph 27 (particularly, the words “the act or process of overthrowing … the government”) is very much in line with the ordinary meaning of the French text («actes visant au renversement d’un gouvernement »). Although in certain contexts, the word “subversion” may well be understood to refer to illicit acts or acts done for an improper purpose, the words used in the French text do not convey any such connotation. I am satisfied that the shared meaning of the two texts does not ordinarily include any reference to the legality or legitimacy of such acts.\n\nI note that the word “subversion” is used only in the English version of paragraph 34(1)(b), while it is used in both the English and French versions of paragraph 34(1)(a). This may or may not signal a different meaning, but it is not my purpose to properly construe paragraph 34(1)(a) in this appeal. I will only note that in Qu v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 71, rev’d in 2001 FCA 399, the application judge was dealing with a predecessor of paragraph 34(1)(a), and this Court never had to deal with the meaning of “subversion” on appeal.\n\nIn the provision at issue here, the word “subversion” must be read in the context of the expression “subversion by force of any government” (in French: “actes visant au renversement d’un gouvernement par la force”), whereas in paragraph 34(1)(a), it is used in reference to “an act of subversion against a democratic government”.", - "current_to": "2014-11-07", + "text": "Turning to the requisite mental element for persecution, we find that the accused must have intended to commit the persecutory acts and must have committed them with discriminatory intent. The requirement for discriminatory intent is unique to persecution and need not be shown in respect of the other forms of crimes against humanity (e.g., murder). This point was made persuasively in the appeal from the Trial Chamber’s decision in Tadic, in which the Appeals Chamber of the ICTY conducted a thorough review of the international law principles on discriminatory intent and crimes against humanity in reaching a conclusion that the discriminatory intent requirement is unique to crimes against humanity which take the form of persecution: 124 ILR 61 (1999), at paras. 287-92.\n\nThe ICTR too has concluded that discriminatory intent is relevant only to persecution: Prosecutor v. Akayesu, Case No. ICTR-96-4-A (Appeals Chamber), 1 June 2001, at paras. 460-69. This is particularly significant since crimes against humanity as defined in art. 3 of the ICTR statute must be committed as part of a widespread and systematic attack against any civilian population “on national, political, ethnic, racial or religious grounds”. In this respect, the judgment of our Court in Finta appears to be inconsistent with the recent jurisprudence of the ICTR and the ICTY. The close relationship between our domestic law and international law on this question mandates that the nature and definition of crimes against humanity should be closely aligned with the jurisprudence of the international criminal courts.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-26", + "id": "scc-2273-66", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 68–71", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 144–146", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "While Mr. Najafi has attempted to frame the debate around the interpretation in terms of the words “subversion by force” in paragraph 34(1)(b), and the legitimacy of the use of the force in certain contexts mentioned above under international law, it is apparent from the expert evidence he relies on that a key question is the legitimacy of the government against which such use of force is directed.\n\nThe notion of an oppressed people’s right of self-determination to use force on which he relies, is directly linked to the “illegitimacy” of the government being opposed because of colonial domination or alien occupation and racism.\n\nThis is why the judge put as much emphasis as she did on the immediate context of paragraph 34(1)(b). The interpretative question raised by these facts is whether the word “government” is limited to “democratically elected government” or some other formula designating a government whose legitimacy is not in issue, or whether it applies to any government, even it is oppressive and racist. When one considers the words of paragraph 34(1)(b), (“any government”), they are clear and unambiguous. The words “subversion by force of any government” do not on their face, imply a qualification of any kind with respect to the government in question.\n\nAlthough the IRPA has many objectives listed in section 3(1), Parliament indicated an intent to prioritize security (paragraph 3(1)h)) when it enacted paragraph 34(1)(b). Indeed, this paragraph provides specifically that a person is inadmissible on security grounds. Thus, the focus of the provision under review is on the right of the government to control its frontier and to deny entry to persons who may be a threat to its security.", - "current_to": "2014-11-07", + "text": "We see no reason to depart from the well-reasoned and persuasive findings of the ICTY and the ICTR on the question of discriminatory intent. Insofar as Finta suggested that discriminatory intent was required for all crimes against humanity (see Finta, at p. 813), it should no longer be followed on this point.\n\nWe conclude from the preceding discussion that the criminal act of persecution is the gross or blatant denial of a fundamental right on discriminatory grounds. The guilty mental state is discriminatory intent to deny the right. The following question remains to be answered: Was Mr. Mugesera’s speech a gross or blatant denial of fundamental rights on discriminatory grounds such that it was equal in gravity to the other acts enumerated in s. 7(3.76)?\n\nThe ICTR and the ICTY have both considered whether hate speech can ever satisfy the criminal act requirement for persecution. In one prominent case, the ICTR found that it was “evident” that hate speech targeting a population on the basis of ethnicity, or other discriminatory grounds was equal in gravity to the other enumerated acts: Media Case, at para. 1072. The ICTY, on the other hand, found in Kordic that the hate speech alleged in the indictment did not constitute persecution because it did not rise to the same level of gravity as the other enumerated acts (para. 209). The Trial Chamber distinguished hate speech that could properly form the basis of a crime against humanity from the hate speech alleged in the indictment, which fell short of incitement to murder, extermination, and genocide (footnote 272). The guiding concern must therefore always be whether the alleged persecutory act reaches the level of a gross or blatant denial of fundamental rights equivalent in gravity to the other enumerated acts.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-27", + "id": "scc-2273-67", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 72–73", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 147", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Turning now to the legislative evolution of this specific ground of inadmissibility, the first such provision was included in the Immigration Act, S.C. 1919, c. 25, (paragraph 3(6)(n)), referred to “persons who believed in or advocated the overthrow by force or violence of the Government of Canada or of constituted law and authority, or who disbelieved in or are opposed to organized government”, (in French: «les personnes qui croient au renversement ou qui préconisent le renversement, par la force ou la violence du gouvernement du Canada ou de la loi ou de l’autorité constituée, ou qui ne croient pas à un gouvernement organisé et s’y opposent…»).\n\nIt was in 1952 that the word “subversion” was first used in the Immigration Act, S.C. 1952, c. 42. Paragraph 5(m) included “persons who have engaged in or advocated or … are likely to engage in or advocate subversion by force or other means of democratic government…” (the French text however, still referred to « le renversement, par la force ou autrement, du régime, des institutions ou des méthodes démocratiques… ». A new paragraph, 5(n), was also included to prohibit the entry of “persons … likely to engage in espionage, sabotage or any subversive activity directed against Canada or detrimental to the security of Canada” (in French: « les personnes qui … sont susceptibles de se livrer à l’espionnage, au sabotage ou à tout autre activité subversive dirigée contre le Canada ou préjudiciable à sa sécurité »). These provisions were carried forward in the 1970 Revised Statutes of Canada.", - "current_to": "2014-11-07", + "text": "In Keegstra, this Court found that the harm in hate speech lies not only in the injury to the self-dignity of target group members but also in the credence that may be given to the speech, which may promote discrimination and even violence (p. 748). This finding suggests that hate speech always denies fundamental rights. The equality and the life, liberty and security of the person of target-group members cannot but be affected: see, e.g., Prosecutor v. Ruggiu, 39 ILM 1338 (ICTR, Trial Chamber I 2000), at para. 22. This denial of fundamental rights may, in particular instances, reach the level of a gross or blatant denial equal in gravity to the other acts enumerated in s. 7(3.76). This is particularly likely if the speech openly advocates extreme violence (such as murder or extermination) against the target group, but it may not be limited to such instances. In contrast to the case of counselling an enumerated violent act, whether the persecution actually results in the commission of acts of violence is irrelevant: Media Case, at para. 1073.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-28", + "id": "scc-2273-68", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 74–77", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 148–149", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The 1976-77 amendments to the Immigration Act (S.C. 1976-77, c. 52) moved the relevant prohibited class provisions to section 19, dealing with inadmissible classes. Paragraph 19(1)(f) still refers to “subversion by force of any government”, while the French text refers to « renversement d’un gouvernement par la force ». The words “espionage, sabotage or any subversive activity” were changed and the class was moved to paragraph 19(e), which applied to acts of espionage or subversion against democratic governments (in French: « des actes d’espionage ou de subversion contre des institutions démocratiques »). In 1992 (S.C. 1992, c. 49) the provisions were all moved to paragraph 19(1)(e), with no changes to the words referred to above.\n\nWith the adoption of the new Immigration Refugee Protection Act (IRPA, S.C. 2001 c. 27), the inadmissibility classes based on security grounds were moved to section 34, which is the version of the provisions on which the Division relied (see paragraph 34 above).\n\nI note that in the various incarnations of the prohibited or inadmissible classes, there were many other changes, but they are not relevant to the present issue.\n\nIt is also worth mentioning that as of 1927 (1927 Revised Statutes of Canada), the various iterations of the relevant provisions included the possibility of obtaining a ministerial exemption. The provision regarding the ministerial exemption only expressly refers to the need to ensure that such exemption is not contrary to public interest as of 1952 (S.C. 1952, c. 42, paragraph 9(c)). “[C]ontrary to public interest” became “detrimental to the national interest” in 1992 (S.C. 1992, c. 49, paragraph 19(1)(f) in fine).", - "current_to": "2014-11-07", + "text": "What then can be said of Mr. Mugesera’s speech? Mr. Duquette found as a matter of fact that Mr. Mugesera’s speech had incited hatred of Tutsi and of his political opponents (para. 335). This incitement included the encouragement of acts of extreme violence, such as extermination (para. 336). Keeping in mind that acts of persecution must be evaluated in context, Mr. Duquette’s finding that Mr. Mugesera’s speech occurred in a volatile situation characterized by rampant ethnic tensions and political instability which had already led to the commission of massacres is also compelling (paras. 335-38). A speech such as Mr. Mugesera’s, which actively encouraged ethnic hatred, murder and extermination and which created in its audience a sense of imminent threat and the need to act violently against an ethnic minority and against political opponents, bears the hallmarks of a gross or blatant act of discrimination equivalent in severity to the other underlying acts listed in s. 7(3.76). The criminal act requirement for persecution is therefore met.\n\nHaving concluded that the criminal act requirement for persecution is made out, we must go on to consider whether the culpable mental element of persecution is made out. Mr. Duquette found that Mr. Mugesera had a discriminatory intent in delivering his speech (para. 335). He found that Mr. Mugesera targeted Tutsi and political opponents on the sole basis of ethnicity and political affiliation with the intent to compel his audience into action against these groups. The IAD’s findings of fact thus amply support a finding that Mr. Mugesera not only committed the criminal act of persecution, but did so with the requisite discriminatory intent.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-29", + "id": "scc-2273-69", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 78–81", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 150", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "There is little material of interest in the legislative history of paragraph 34(1)(b).This source is to be given less weight in any event. That said, the judge could refer to the material she describes at paragraph 67 of the Reasons, as it simply confirms what one gathers from the legislative evolution – that Parliament intended the expression “subversion by force of any government” in paragraph 34(1)(b) to have a broad application.\n\nThe comments made and the ultimate rejection of a motion to replace the words “of any government” with “democratically elected government” in paragraph 34(1)(b) before the Standing Committee on Citizenship and Immigration and the comments made in the House of Commons during the debate at the third reading, confirm that Parliament was very much alive to arguments like those advanced by Mr. Najafi when it adopted the provision.\n\nObviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application. (As discussed above, subsection 34(2) is now subsection 42.1(1). Per subsection 42.1(2), it can now also be granted on the Minister’s own initiative).\n\nThis mechanism can be used to protect innocent members of an organization but also members of organizations whose admission to Canada would not be detrimental or contrary to national interest because of the organization’s activities in Canada and the legitimacy of the use of force to subvert a government abroad.", - "current_to": "2014-11-07", + "text": "In sum, the criminal act requirement for a crime against humanity under ss. 7(3.76) and 7(3.77) of the Criminal Code contains two primary elements: (1) the accused has committed an underlying enumerated act; and (2) that act contravened international law. With respect to the first element, both the physical and mental elements of the underlying act must be made out. In the case at bar, there were two possible underlying acts: counselling of murder, and persecution by hate speech. For counselling of murder to be considered a crime against humanity under international law, murders must actually have been committed. Mr. Duquette’s finding that no murders were proven to have resulted from the speech therefore precludes a finding that Mr. Mugesera counselled murder within the meaning of s. 7(3.76). The other possible underlying act, persecution, is a gross or blatant denial of fundamental rights on discriminatory grounds equal in severity to the other acts enumerated in s. 7(3.76). Hate speech, particularly when it advocates egregious acts of violence, may constitute persecution. In this case, it does. (ii) The Act Contravenes Customary or Conventional International Law or Is Criminal According to the General Principles of Law Recognized by the Community of Nations", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-30", + "id": "scc-2273-70", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 82–85", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 151–152", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "It is obvious that in the latter case in particular, the resolution of international law issues may be complex. This supports the argument that the Minister is better equipped to deal with such issues in the context of an application for ministerial exemption. An example of such reasoning is provided by the Geneva Conventions Act, R.S.C., 1985, c. G-3, section 9, which allows the Minister of Foreign Affairs to issue a certificate stating that a state of war or of international or non-international armed conflict existed between states or within a state.\n\nAt this stage of my analysis, I find that the language of paragraph 34(1)(b) is clear.\n\nAs in Németh, I will now consider the international law principle put forth by Mr. Najafi in support of his view that paragraph 34(1)(b) should be construed as follows: Subversion by force means using force to overthrow a government but does not include force used by lawful combatants protected by Protocol I.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 [Febles], at paragraph 12, the Supreme Court of Canada reiterated that international conventions must be construed in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T. S. 1980 No. 37, which are similar to our own general principles of statutory interpretation.", - "current_to": "2014-11-07", + "text": "We now turn to the second element of the criminal act requirement for a crime against humanity: that the proscribed act contravene international law. The second element of the criminal act requirement for crimes against humanity concerns the context in which the first element, the enumerated act, takes place. Customary international law tells us that the enumerated acts will become crimes against humanity if they are committed as part of a widespread or systematic attack directed against any civilian population or any identifiable group. This additional contextual requirement is what distinguishes a crime against humanity from an ordinary crime: Tadic, Trial Chamber, at paras. 648 and 653; see also G. Mettraux, “Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda” (2002), 43 Harv. Int’l L.J. 237, at p. 244.\n\nIn order to determine whether there are reasonable grounds to believe that Mr. Mugesera’s act of persecution constituted a crime against humanity, we must therefore consider whether the speech was part of a widespread or systematic attack directed against a civilian population. Since this requirement is dictated entirely by customary international law, the jurisprudence of the ICTY and the ICTR is again very relevant. 1. What Is a Widespread or Systematic Attack?", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-31", + "id": "scc-2273-71", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 86–87", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 153–154", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The evidence of Mr. Najafi’s experts in this respect appears to be somewhat incomplete. For example, they do not explain how they construed the following paragraphs of the Preamble to Protocol I and what effect they gave to its Article 4. Preamble: Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations, Reaffirming further that the provisions of the Geneva Conventions of 12 August1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict Article 4: The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.\n\nI also note that the view of these experts is at odds with the view expressed by Heather Wilson in her book entitled: International Law and the Use of Force by National Liberation Movements (Book of Authorities, Volume 4, Tab 52). In her conclusions at page 135, she states that to contend unequivocally that Protocol I reflects a change in international law giving international liberation movements the authority to use force legitimately would be an overstatement.", - "current_to": "2014-11-07", + "text": "An “attack” may be “a course of conduct involving the commission of acts of violence”: Prosecutor v. Kunarac, Kovac and Vukovic, Case Nos. IT-96-23-T & IT-96-23/1-T (ICTY, Trial Chamber II), 22 February 2001, at para. 415. It may also be a course of conduct that is not characterized by the commission of acts of violence if it involves the imposition of a system such as apartheid, or the exertion on the population of pressure to act in a particular manner that is orchestrated on a massive scale or in a systematic manner: Akayesu, Trial Chamber, at para. 581. It is fair to say, however, that in most instances, an attack will involve the commission of acts of violence. This definition aptly conveys the idea that the existence of an attack does not presuppose armed conflict (though it does not preclude armed conflict).\n\nA widespread attack “may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims” — it need not be carried out pursuant to a specific strategy, policy or plan: Akayesu, Trial Chamber, at para. 580; and Prosecutor v. Kayishema, Case No. ICTR‑95‑1-T (Trial Chamber II), 21 May 1999, at para. 123. It may consist of a number of acts or of one act of great magnitude: Mettraux, at p. 260.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-32", + "id": "scc-2273-72", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 88–91", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 155–156", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "That said, as the Division did not comment on this evidence, I am prepared to assume, without deciding, that the legal effect of Protocol I is as stated in the affidavits of Mr. Najafi’s experts. This will ensure that I complete my review of the overall legal context to Mr. Najafi’s greatest advantage.\n\nEven if I adopt this approach, I cannot conclude from the overall legal context that paragraph 34(1)(b) should be construed as encompassing only the use of force that is not legitimate or lawful pursuant to international law.\n\nLike the Division, I find that legality or legitimacy may well be an issue that the Minister can consider under subsection 34(2) of the IRPA, but it is not one that is relevant to the application of paragraph 34(1)(b). Thus, the Division’s interpretation is clearly reasonable. I would answer the certified question, as formulated by the judge or reformulated at paragraph 46, in the negative.\n\nIn reaching this conclusion, I considered Mr. Najafi’s argument that the Division’s interpretation might capture a member of the Canadian Armed Forces within the ambit of paragraph 34(1)(b) of the IRPA. This hypothetical was meant to illustrate the “absurdity” of the Division’s interpretation. In my experience, one can usually concoct a dubious example designed to show that a particular provision is overbroad and cannot have been intended. However, courts must consider that the Act will be administered in a reasonable way. It strains credulity to suppose that an inadmissibility report would be issued in respect of a member of the Canadian Armed Forces based on his or her actions as a Canadian soldier.", - "current_to": "2014-11-07", + "text": "A systematic attack is one that is “thoroughly organised and follow[s] a regular pattern on the basis of a common policy involving substantial public or private resources” and is “carried out pursuant to a . . . policy or plan”, although the policy need not be an official state policy and the number of victims affected is not determinative: Akayesu, Trial Chamber, at para. 580; and Kayishema, at para. 123. As noted by the ICTY’s Trial Chamber in Kunarac, at para. 429: “The adjective ‘systematic’ signifies the organised nature of the acts of violence and the improbability of their random occurrence. Patterns of crimes — that is the non‑accidental repetition of similar criminal conduct on a regular basis — are a common expression of such systematic occurrence.”\n\nAn attack need be only widespread or systematic to come within the scope of s. 7(3.76), not both: Tadic, Trial Chamber, at para. 648; Kayishema, at para. 123. The widespread or systematic nature of the attack will ultimately be determined by examining the means, methods, resources and results of the attack upon a civilian population: Kunarac, at para. 430. Only the attack needs to be widespread or systematic, not the act of the accused. The IAD, relying on Sivakumar, appears to have confused these notions, and to the extent that it did, it erred in law. Even a single act may constitute a crime against humanity as long as the attack it forms a part of is widespread or systematic and is directed against a civilian population: Prosecutor v. Mrksic, Radic and Sljivancanin, 108 ILR 53 (ICTY, Trial Chamber I 1996), at para. 30.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-33", + "id": "scc-2273-73", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 92–96", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 157–158", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Prior to the hearing, the parties debated as to whether or not Mr. Najafi was required to serve a notice of constitutional question pursuant to section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, in order to raise his argument based on section 2(d) of the Charter.\n\nDespite the fact that he believes that it was not necessary to send such a notice, Mr. Najafi did so in an abundance of caution. However, both parties asked the Court to clarify the issue.\n\nIn a letter to the Court dated March 31, 2014, Mr. Najafi’s counsel made it absolutely clear that his position had been consistent from the outset, and that what Mr. Najafi claims is that “the provision must be interpreted so as to not infringe the Appellant’s right to associate protected by subsection 2(d) of the Charter. This requires the Court to exclude from the scope of subsection 34(1) memberships in organizations that are legal in Canada and that do not support illegal activities committed outside of Canada”. Mr. Najafi’s counsel stated that he was relying on the presumption of compliance with constitutional law, which he says is sufficient to enable the Division and this Court to read down paragraph 34(1)(f) so as to exclude organizations such as the KDPI.\n\nAgain, at the hearing and at the request of the panel, Mr. Najafi made it abundantly clear that he had chosen not to argue that paragraph 34(1)(f) is invalid, inapplicable or inoperable on constitutional grounds and that therefore, section 57 of the Federal Courts Act, should not apply.\n\nI agree. In such a case, no notice of constitutional question is required.", - "current_to": "2014-11-07", + "text": "A contentious issue raised by the “widespread or systematic attack” requirement is whether the attack must be carried out pursuant to a government policy or plan. Some scholars suggest that limiting crimes against humanity to attacks which implement a government policy is necessary due to the nature and scale of such crimes: see, e.g., Bassiouni, at pp. 243-46. Others point out that the existence of a government policy has never been required and suggest that crimes against humanity take on their international character simply by virtue of the existence of a widespread and systematic attack: see, e.g., Mettraux, at pp. 270-82.\n\nThe Appeals Chamber of the ICTY held in Prosecutor v. Kunarac, Kovac and Vukovic that there was no additional requirement for a state or other policy behind the attack: Case Nos. IT-96-23-A & IT-96-23/1-A, 12 June 2002, at para. 98. The Appeals Chamber acknowledged that the existence of such a policy might be useful in establishing that the attack was directed against a civilian population or that it was widespread or systematic (particularly the latter). However, the existence of a policy or plan would ultimately be useful only for evidentiary purposes and it does not constitute a separate element of the offence (para. 98). It seems that there is currently no requirement in customary international law that a policy underlie the attack, though we do not discount the possibility that customary international law may evolve over time so as to incorporate a policy requirement (see, e.g., art. 7(2)(a) of the Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998).", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-34", + "id": "scc-2273-74", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 97–100", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 159", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "That said, it is important to note that although reading down can be used as an interpretive technique or as a constitutional remedy, the distinction between the two is important in the context of Charter cases. When one relies on the presumption of compliance with the Charter to narrow the interpretation of a provision, the issue of whether that language, without the exclusion, might be justifiable under section 1 does not arise. However, when reading down is used as a remedy in the context of a constitutional challenge to the validity of a provision, its validity is first assessed and the need to read down words does not arise unless and until any possible defence based on section 1 has been tried and failed (Construction of Statutes, 2008 at pages 465 to 466).\n\nThe judge never had to determine the standard of review applicable to the proper interpretation of the word “organization” in paragraph 34(1)(f) as she never got to that question, having concluded that the matter did not involve a violation of any Charter right.\n\nWith the benefit of Mr. Najafi’s clarifications as to his arguments, (see paragraphs 94 and 95 above), there is no need to deal with the judge’s finding that the matter did not involve Charter violation, if in any event, paragraph 34(1)(f) of the IRPA cannot be read down so as to exclude organizations such as the KDPI, simply as a matter of interpretation, rather than as a remedy.\n\nI will thus first determine whether, using the Driedger modern approach to statutory interpretation (and paragraph 3(3)(d) of the IRPA), the Division could reasonably construe the word “organization” used in paragraph 34(1)(f) as excluding the KDPI in the absence of a constitutional challenge to the validity of this provision.", - "current_to": "2014-11-07", + "text": "Considering all these factors, was a widespread or systematic attack taking place when Mr. Mugesera gave his speech? With respect to whether the attack was widespread, Mr. Duquette found that, between October 1, 1990 and November 22, 1992, almost 2,000 Tutsi were massacred in Rwanda (para. 336). Mr. Duquette also found as a fact that in October 1990 approximately 8,000 people, 90 percent of them Tutsi, were falsely arrested on suspicion of complicity with the RPF (para. 26). The massacres occurred in various parts of the country and the number of victims grew to the thousands. This suggests a large-scale action directed against a multiplicity of victims.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-35", + "id": "scc-2273-75", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 101–105", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 160–161", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The Division construed paragraph 34(1)(f) in accordance with a long line of jurisprudence, including this Court’s decision in Gebreab v. Canada (Public Safety and Emergency Preparedness), 2010 FCA 274, that no temporal connection is required between the membership and the acts referred to in paragraphs 34(1)(a), (b) and (c) of the IRPA. It also construed it as applicable to activities carried out by the organization outside of Canada even if its activities in Canada were legal.\n\nMr. Najafi does not challenge that this is a reasonable interpretation when applied to an organization to which section 2(d) of the Charter would not apply. However, he argues that this is not so if membership in an organization protected by the Charter is involved. He also adds that subversion by force by any organization would have to be excluded, even when it is not so excluded, where the person has himself or herself engaged in such acts under paragraph 34(1)(b).\n\nAt the hearing, Mr. Najafi’s counsel proposed that the word “organization” should simply be construed as follows: An organization other than an organization operating in Canada whose activities are lawful in Canada.\n\nIn my view, this is too wide. It would offend the holding of the Supreme Court of Canada in Suresh.\n\nIn Suresh, it was argued that the organization at issue never engaged in any unlawful activities in Canada. Still, the Supreme Court of Canada found that section 2(d) does not protect the right to associate with an organization which engages in violence or terrorism abroad while the person is a member.", - "current_to": "2014-11-07", + "text": "In any event, it is unnecessary to decide whether the attack was widespread because the facts as found by Mr. Duquette support the conclusion that it was, at the very least, systematic. Mr. Duquette found as a fact that the Rwandan government staged a military attack on Kigali which served to justify the arrest of and continued violence against Tutsi and against political opponents (para. 255). According to Mr. Duquette, a pattern of massacres, sometimes participated in and overtly encouraged by MRND officials and the military, began in 1990 and was still under way when Mr. Mugesera gave his speech (para. 50). As discussed above, a pattern of victimizing behaviour, particularly one which is sanctioned or carried out by the government or the military, will often be sufficient to establish that the attack took place pursuant to a policy or plan and was therefore systematic. There was an unmistakable policy of attacks, persecution and violence against Tutsi and moderate Hutu in Rwanda at the time of Mr. Mugesera’s speech. Mr. Mugesera’s act of persecution therefore took place in the context of a systematic attack. 2. What Does It Mean for the Attack to Be “Directed Against Any Civilian Population”?\n\nThe mere existence of a systematic attack is not sufficient, however, to establish a crime against humanity. The attack must also be directed against a civilian population. This means that the civilian population must be “the primary object of the attack”, and not merely a collateral victim of it: Kunarac, Trial Chamber, at para. 421. The term “population” suggests that the attack is directed against a relatively large group of people who share distinctive features which identify them as targets of the attack: Mettraux, at p. 255.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-36", + "id": "scc-2273-76", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 106", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 162–164", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Turning now to the interpretation of paragraph 34(1)(f), I find it relevant that in Suresh, the Supreme Court of Canada noted that the inadmissibility provision (in that case, section 19 of the Immigration Act, R.S.C. 1985, c. I-2, dealing with membership in an organization engaged in terrorism) must be read with the section providing for a ministerial exemption (the predecessor of subsection 34(2) of the IRPA), as it evidences the legislator’s intention to allow for a balancing of Charter values with other Canadian fundamental values, such as national interest, national security and the protection of the safety of the Canadian society (Suresh, at paragraphs 109 to 110). This is especially so since Agraira and Doré made it abundantly clear that the Minister’s decision in respect of an exemption under subsection 34(2) must involve such a balancing of Charter rights and values with the important objectives set out in that subsection.", - "current_to": "2014-11-07", + "text": "A prototypical example of a civilian population would be a particular national, ethnic or religious group. Thus, for instance, the target populations in the former Yugoslavia were identifiable on ethnic and religious grounds. It is notable that the fact that non-civilians also form part of the group will not change the character of the population as long as it remains largely civilian in nature: Prosecutor v. Blaskic, 122 ILR 1 (ICTY, Trial Chamber I 2000), at para. 211.\n\nThe Tutsi and moderate Hutu, two groups that were ethnically and politically identifiable, were a civilian population as this term is understood in customary international law. Mr. Duquette’s findings of fact leave no doubt that the ongoing systematic attack was directed against them. For these reasons, we agree that at the time of Mr. Mugesera’s speech, a systematic attack directed against a civilian population was taking place in Rwanda. 3. What Does It Mean for an Act to Occur “as Part of” a Systematic Attack?\n\nAs we have seen, the existence of a widespread or systematic attack helps to ensure that purely personal crimes do not fall within the scope of provisions regarding crimes against humanity. However, because personal crimes are committed in all places and at all times, the mere existence of a widespread or systematic attack will not be sufficient to exclude them. To ensure their exclusion, a link must be demonstrated between the act and the attack which compels international scrutiny. For this reason, we must explore what it means for an act to occur “as part of” a widespread or systematic attack and determine whether Mr. Mugesera’s speech was indeed “a part of” the systematic attack occurring in Rwanda in the early 1990s.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-99694-37", + "id": "scc-2273-77", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 107–109", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 165–167", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not reasonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewriting the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Charter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”.\n\nGiven that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to violate section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.\n\nIn view of the foregoing, I propose to dismiss this appeal and to answer the certified question, as formulated by the judge or as reformulated in paragraph 46 above, in the negative. “Johanne Gauthier” J.A. “I agree J.D. Denis Pelletier J.A.” “I agree D.J. Near J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2014-11-07", + "text": "The requirement for a link between the act and the attack may be expressed in many ways. For instance, “in the context of” or “forming a part of” are common wordings. These phrases require that the accused’s acts “be objectively part of the attack in that, by their nature or consequences, they are liable to have the effect of furthering the attack”: Mettraux, at p. 251. In Tadic, the Appeals Chamber of the ICTY found that the acts of the accused must “comprise part of a pattern” of widespread or systematic abuse of civilian populations or must objectively further the attack (para. 248).\n\nTo say that an act must be part of a pattern of abuse or must objectively further the attack does not mean that no personal motive for the underlying act can exist. The presence of a personal motive does not change the nature of the question, which remains an objective one: is the act part of a pattern of abuse or does it further the attack?\n\nAlso, and this is particularly relevant given the findings of Décary J.A. for the FCA in this case, the proscribed act need not be undertaken as a particular element of a strategy of attack. In essence, the act must further the attack or clearly fit the pattern of the attack, but it need not comprise an essential or officially sanctioned part of it. Thus, in Kunarac, where the three accused took advantage of a widespread and systematic attack to rape and sexually torture Muslim women and girls, the nexus requirement was made out: Trial Chamber, at para. 592. The accused knew of the attack, their acts furthered the attack directed against the Muslim population of Foca and they contributed to a pattern of attack against that population.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-108889-1", + "id": "scc-2273-78", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 1–5", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 168–169", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The Immigration Division of the Immigration and Refugee Board of Canada found the appellant to be inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). The Immigration Division found that the appellant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism. The Immigration Division reasoned that:\n\nA judge of the Federal Court dismissed an application for judicial review of the decision of the Immigration Division (2014 FC 384) that the appellant was inadmissible under paragraph 34(1)(f) of the Act. The Judge certified the following question: Does Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?\n\nThis is an appeal from the decision of the Federal Court.\n\nIn my view, the issues to be resolved on this appeal are:\n\nThe questions before this Court are: did the Federal Court select the appropriate standard of review and apply it correctly? To answer these questions this Court must “step into the shoes” of the Federal Court and focus on the administrative decision at issue (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45 and 46).", - "current_to": "2015-04-07", + "text": "These legal principles make it clear that Décary J.A. erred in law when he suggested that a crime against humanity could not be made out because Mr. Mugesera’s speech was not part of a “strategy” (para. 58). However, we must still consider whether Mr. Mugesera’s speech objectively furthered the attack or fit into its pattern.\n\nMr. Duquette found as a fact that Mr. Mugesera’s speech had targeted Tutsi and moderate Hutu (para. 335). Tutsi and moderate Hutu were the targets of the systematic attack taking place in Rwanda at the time. A persecutory speech which encourages hatred and violence against a targeted group furthers an attack against that group. Also relevant is geographical proximity. Mr. Duquette found that many of the massacres perpetrated in Rwanda between 1990 and 1993 had occurred in and around Gisenyi prefecture, where the speech was given (paras. 26 and 50). He also noted that local MRND officials had participated in and encouraged the targeting of Tutsi and moderate Hutu. Mr. Mugesera’s speech therefore not only objectively furthered the attack, but also fit into a pattern of abuse prevailing at that time. We therefore conclude that Mr. Mugesera’s speech was “a part of” a systematic attack directed against a civilian population that was occurring in Rwanda at the time.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-108889-2", + "id": "scc-2273-79", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 6–10", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 170–172", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The Federal Court did not expressly consider the standard of review. It framed the issue before it to be whether the decision of the Immigration Division was reasonable with respect to whether the appellant was a member of an organization that there are reasonable grounds to believe engaged in terrorism. The Federal Court noted that the outcome would turn on whether it was reasonable for the Immigration Division to find that membership in the TNA, a political party, was tantamount to membership in the LTTE (reasons, at paragraph 3).\n\nThe parties disagree about the standard of review to be applied to the Immigration Division’s interpretation of “member”.\n\nThe appellant argues that the definition of “member” is a legal question of general importance outside of the expertise of the Immigration Division. The word “member” therefore must be interpreted correctly. The appellant also relies upon the decision of this Court in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113, 459 N.R. 367.\n\nThe respondent submits that this Court has previously applied the reasonableness standard to the Immigration Division’s interpretation of member: Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487.\n\nIn my view, in this case nothing turns on the standard of review. On the basis of the required textual, contextual and purposive analysis conducted below, there is only a single reasonable interpretation of the word “member” (McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paragraph 38; Canada (Minister of Public Safety and Emergency Preparedness v. Huang, 2014 FCA 228, 464 N.R. 112, at paragraph 39).", - "current_to": "2015-04-07", + "text": "In sum, we have seen that the criminal act requirement for crimes against humanity in ss. 7(3.76) and 7(3.77) is made up of three essential elements: (1) a proscribed act is carried out; (2) the act occurs as part of a widespread or systematic attack; and (3) the attack is directed against any civilian population. The first element means that all the elements of an enumerated act — both physical and moral — must be made out. The second and third elements require that the act take place in a particular context: a widespread or systematic attack directed against any civilian population. Each of these elements has been made out in Mr. Mugesera’s case.\n\nHowever, as noted above, making out the criminal act of a crime against humanity will not necessarily imply that there are reasonable grounds to believe that Mr. Mugesera has committed a crime against humanity. Mr. Mugesera must also have had a guilty mind. As a result, we must now go on to consider the mental element of s. 7(3.76) of the Criminal Code . (b) The Guilty Mind for Crimes Against Humanity\n\nWe have seen that an individual accused of crimes against humanity must possess the required guilty state of mind in respect of the underlying proscribed act. We have also underlined that, contrary to what was said in Finta, discriminatory intent need not be made out in respect of all crimes against humanity, but only in respect of those which take the form of persecution. This leaves a final question: in addition to the mental element required for the underlying act, what is the mental element required to make out a crime against humanity under s. 7(3.76) of the Criminal Code ?", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-108889-3", + "id": "scc-2273-80", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 11–15", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 173–174", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "That said, the substance of the decision of the Immigration Division is to be reviewed on the standard of reasonableness.\n\nThe appellant submits that the approach of the Supreme Court to complicity in Ezokola reflects broader concerns and articulates principles of interpretation of wider application. The appellant asserts that the Supreme Court’s concern in Ezokola about excluding those who are guilty of no wrongdoing should also guide the interpretation of “membership” under paragraph 34(1)(f) of the Act. It follows, the appellant argues, that membership should not be extended to those who are not involved in terrorist activities or who are loosely linked to a terrorist organization or who are compelled to join a terrorist organization. The appellant further argues that in keeping with the parameters of what the Supreme Court found in Ezokola to be blameworthy conduct, the principled nexus must be a significant contribution to the wrongful actions of the group by a true member who joined without coercion or compulsion.\n\nI disagree that the decision of the Supreme Court in Ezokola requires modification of the legal test for membership in a terrorist organization. I reach this conclusion for the following reasons.\n\nI begin by discussing the scheme of the Act and the nature of the issue before the Supreme Court in Ezokola.\n\nArticle 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(a) is set out in the appendix to these reasons, together with all sections of the Act cited in these reasons.", - "current_to": "2015-04-07", + "text": "The question of whether a superadded mental element exists for crimes against humanity was a point of significant contention in Finta. Cory J., for the majority, found that the accused must have an awareness of the facts or circumstances which would bring the act within the definition of a crime against humanity (p. 819). La Forest J. penned dissenting reasons suggesting that establishing the mental element for the underlying act was sufficient in itself and thus no additional element of moral blameworthiness was required (p. 754). At the time, there was little international jurisprudence on the question. It is now well settled that in addition to the mens rea for the underlying act, the accused must have knowledge of the attack and must know that his or her acts comprise part of it or take the risk that his or her acts will comprise part of it: see, e.g., Tadic, Appeals Chamber, at para. 248; Ruggiu, at para. 20; Kunarac, Trial Chamber, at para. 434; Blaskic, at para. 251.\n\nIt is important to stress that the person committing the act need only be cognizant of the link between his or her act and the attack. The person need not intend that the act be directed against the targeted population, and motive is irrelevant once knowledge of the attack has been established together with knowledge that the act forms a part of the attack or with recklessness in this regard: Kunarac, Appeals Chamber, at para. 103. Even if the person’s motive is purely personal, the act may be a crime against humanity if the relevant knowledge is made out.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-108889-4", + "id": "scc-2273-81", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 16–19", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 175–176", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "Article 1F(a) is incorporated into Canadian law by section 98 of the Act.\n\nAs a matter of law, criminal liability is not confined to the direct perpetrators of a crime. As the Supreme Court noted in Ezokola, a murder conviction can attach equally to one who pulls the trigger as well as to one who provides the gun (Ezokola, at paragraph 1).\n\nAt issue in Ezokola was the line between mere association and culpable complicity (Ezokola, at paragraph 4). The Court found that complicity arises by contribution; Article 1F(a) requires serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose (Ezokola, at paragraph 8).\n\nParagraph 35(1)(a) of the Act is the domestic inadmissibility provision that parallels Article 1F(a). In material part, paragraph 35(1)(a) of the Act provides: 35. (1) Human or international rights violation – A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for 35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; [Emphasis added.] a) commettre, hors du Canada, une des infractions visées aux articles 4 è 7 de la Loi sur les crimes contre l’humanité et les crimes de guerre; [Le souligné est de moi.]", - "current_to": "2015-04-07", + "text": "Knowledge may be factually implied from the circumstances: Tadic, Trial Chamber, at para. 657. In assessing whether an accused possessed the requisite knowledge, the court may consider the accused’s position in a military or other government hierarchy, public knowledge about the existence of the attack, the scale of the violence and the general historical and political environment in which the acts occurred: see, e.g., Blaskic, at para. 259. The accused need not know the details of the attack: Kunarac, Appeals Chamber, at para. 102.\n\nIn Finta, the majority of this Court found that subjective knowledge on the part of the accused of the circumstances rendering his or her actions a crime against humanity was required (p. 819). This remains true in the sense that the accused must have knowledge of the attack and must know that his or her acts are part of the attack, or at least take the risk that they are part of the attack.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-108889-5", + "id": "scc-2273-82", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 20–23", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "paras 177–179", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The present appeal implicates subsection 34(1) of the Act: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : […] [. . .] (c) engaging in terrorism; c) se livrer au terrorisme; […] [. . .] (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs (a), (b), (b.1) or (c). [Emphasis added.] f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). [Le souligné est de moi.]\n\nRead together, clear differences exist between subsections 34(1) and 35(1). Under subsection 34(1) an inadmissibility finding flows from engaging in terrorism or membership in an organization that engages in terrorism; under subsection 35(1) an inadmissibility finding flows from the commission of an offence. Because criminal liability attaches to both the direct perpetrators and their accomplices, complicity is relevant to the subsection 35(1) analysis.\n\nIn contrast, nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.\n\nThis textual analysis of paragraph 34(1)(f) is informed by contextual and purposive considerations.", - "current_to": "2015-04-07", + "text": "Returning to the case at bar, the findings of the IAD leave no doubt that Mr. Mugesera possessed the culpable mental state required by s. 7(3.76) of the Criminal Code . Mr. Duquette found that Mr. Mugesera was a well-educated man who was aware of his country’s history and of past massacres of Tutsi (para. 338). He was aware of the ethnic tensions in his country and knew that civilians were being killed merely by reason of ethnicity or political affiliation (para. 338). Moreover, Mr. Duquette found that the speech itself left no doubt that Mr. Mugesera knew of the violent and dangerous state of affairs in Rwanda in the early 1990s (para. 338). These findings of fact clearly show that Mr. Mugesera was aware of the attack occurring against Tutsi and moderate Hutu. Furthermore, a man of his education, status and prominence on the local political scene would necessarily have known that a speech vilifying and encouraging acts of violence against the target group would have the effect of furthering the attack.\n\nIn the face of certain unspeakable tragedies, the community of nations must provide a unified response. Crimes against humanity fall within this category. The interpretation and application of Canadian provisions regarding crimes against humanity must therefore accord with international law. Our nation’s deeply held commitment to individual human dignity, freedom and fundamental rights requires nothing less.\n\nBased on Mr. Duquette’s findings of fact, each element of the offence in s. 7(3.76) of the Criminal Code has been made out. We are therefore of the opinion that reasonable grounds exist to believe that Mr. Mugesera committed a crime against humanity and is therefore inadmissible to Canada by virtue of ss. 27(1)(g) and 19(1)(j) of the Immigration Act. VI. Disposition", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-108889-6", + "id": "scc-2273-83", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2005 SCC 40", + "act_short": "Mugesera", + "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 24–26", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", + "marginal_note": "para 180", + "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", + "part": "Supreme Court of Canada", "division": "", - "text": "The first contextual factor is paragraph 34(1)(c) of the Act which renders a person inadmissible for “engaging in terrorism”. Thus, paragraph 34(1)(c) of the Act contemplates actual participation in acts of terrorism, while paragraph 34(1)(f) is only concerned with membership in a terrorist organization. On the appellant’s interpretation of “membership”, paragraph 34(1)(c) would be redundant.\n\nMoreover, as noted by the Federal Court in Nassereddine v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, 22 Imm. L.R. (4th) 297, at paragraph 74, while paragraph 34(1)(c) could possibly engage a consideration of complicity, this provision is not relevant to the finding under review that the appellant is inadmissible as a result of his membership in the TNA.\n\nThe second contextual factor is section 42.1 of the Act which permits the Minister to find a person not to be inadmissible pursuant to section 34 if the Minister is satisfied that such a finding is not contrary to the national interest. Because of the very broad range of conduct that gives rise to inadmissibility under paragraph 34(1)(f), the Minister is given discretion to grant relief against inadmissibility. There is no similar relieving provision applicable to a finding of inadmissibility under paragraph 35(1)(a). A relieving provision is not required where inadmissibility flows from the commission of an offence whether as perpetrator or accomplice.", - "current_to": "2015-04-07", + "text": "The appeal is allowed. The deportation order of July 11, 1996 in respect of Mr. Léon Mugesera is held to be valid on the grounds stated above. There will be no order as to costs.", + "current_to": "2005-06-28", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2005] 2 SCR 100", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" }, { - "id": "fca-108889-7", + "id": "scc-13643-1", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 27–31", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 1–3", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Finally, I note that the purposes underlying subsection 34(1) and paragraph 35(1)(a) are very different. Paragraph 34(1)(f) is animated by security concerns. This purpose is served by a wide definition of membership. In contrast, paragraph 35(1)(a) guards against abuse of the Refugee Convention by those who create refugees: those who create refugees are not refugees themselves (Ezokola, at paragraph 34).\n\nHaving concluded that Ezokola does not compel any change to the legal test used to establish membership, I next consider the reasonableness of the decision of the Immigration Division.\n\nAs explained above, the Immigration Division found that the appellant’s membership in the TNA constituted membership in the LTTE. I conclude on the basis of the evidentiary record before the Immigration Division that its decision was reasonable.\n\nThat said, great caution must be exercised when finding membership in one organization to be a proxy for membership in another. Particularly in the context of nationalist or liberation movements, the mere sharing of goals and coordination of political activities may well not justify this type of analysis.\n\nWith respect to consideration of the reasonableness of the decision of the Immigration Division in this case, there were three distinct categories of evidence before it: third-party country condition reports, the appellant’s own statements and the appellant’s contacts with senior LTTE leadership.", - "current_to": "2015-04-07", + "text": "The Chief Justice ― The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) seek to have Mohamed Harkat, a non-citizen, declared inadmissible to Canada. Mr. Harkat is alleged to have come to Canada for the purpose of engaging in terrorism. He has been detained, or living under strict conditions, for over a decade. He potentially faces deportation to a country where he may be at risk of torture or death, although the constitutionality of his deportation in such circumstances is not before us in the present appeal.\n\nThe reasonableness of the ministers’ decision to declare Mr. Harkat inadmissible to Canada is subject to judicial review, under Division 9 of Part 1 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “IRPA scheme”). This scheme prevents Mr. Harkat from seeing some of the evidence and information tendered against him, because its public disclosure would harm national security.\n\nThe issue in this appeal is whether the IRPA scheme complies with the Constitution, in particular the guarantee in the Canadian Charter of Rights and Freedoms against unjustifiable intrusions on life, liberty, and security of the person. More specifically, this appeal asks whether the IRPA scheme gives Mr. Harkat a fair opportunity to defend himself against the allegations made by the ministers, despite the fact that national security considerations prevent him from seeing the entire record and from personally participating in all of the hearings. It requires us to determine how far the principle of full disclosure in an open court can be qualified in order to address the threat posed by non-citizens who may be involved in terrorism.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-108889-8", + "id": "scc-13643-2", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "para 32", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 4–6", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted by the Immigration Division at paragraphs 28 to 42 of its reasons, the third-party country condition documentation included the following information about the LTTE’s influence over the TNA: • A Jane’s World Insurgency and Terrorism Report noted the LTTE’s instruction to Tamil leaders to join the TNA and that the LTTE head-office selected the TNA’s nominees in the 2004 election. The LTTE was said to have then launched a massive campaign in favour of TNA candidates. The campaign included the killing of several anti-TNA candidates and their supporters (Appeal Book, Volume 2, Tab 8, at pages 514-515). • A UNHCR “Background Paper on Refugees and Asylum-Seekers from Sri Lanka” reported the LTTE announced support for the TNA and further reported that candidates from rival parties were killed, allegedly by the LTTE (Appeal Book, Volume 4, Tab 13, at page 1017). • A chapter in “The Political Handbook of the World: 2005-2006” described the 2004 elections as “the first time the TNA explicitly served as the proxy of the LTTE, winning 22 seats in the north and east” (Appeal Book, Volume 2, Tab 7, at page 439). • An Amnesty International report covering Sri Lanka for 2005 reported that “[t]he LTTE-affiliated Tamil National Alliance (TNA) took the majority of seats in the north-east, where elections were marred by vote rigging, intimidation and violence” including the killing of rival candidates (Appeal Book, Volume 4, Tab 13, at page 1077).", - "current_to": "2015-04-07", + "text": "I conclude that that the IRPA scheme is constitutional. Crafting a regime that achieves a fundamentally fair process while protecting confidential national security information is a difficult task. The scheme must apply to a broad range of cases, implicating a variety of national security concerns. Parliament’s response to this challenge has been to confer on judges the discretion and flexibility to fashion a fair process, in the particular case before them. If this is impossible, judges must not hesitate to find a breach of the right to a fair process and to grant whatever remedies are appropriate, including a stay of proceedings.\n\nIn the present case, the process was fair and the Federal Court judge committed no reviewable errors in finding that the ministers’ decision to declare Mr. Harkat inadmissible to Canada was reasonable. I. History of the Legislation and of the Proceedings A. The Legislation\n\nThe purpose of the IRPA scheme “is to permit the removal of non-citizens living in Canada — permanent residents and foreign nationals — on various grounds, including connection with terrorist activities”: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (“Charkaoui I”), at para. 4. The ministers must decide whether the evidence against a non-citizen gives them reasonable grounds to declare him or her “inadmissible” to Canada — i.e. to issue a removal order. The resulting “certificate of inadmissibility” (also called a “security certificate”) is then referred to the Federal Court for a review of its reasonableness. If a Federal Court judge (the “designated judge”) finds the certificate to be reasonable, the non-citizen named in that certificate (the “named person”) becomes subject to a removal order.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-108889-9", + "id": "scc-13643-3", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "para 32", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 7", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "• A BBC News report quoted the appellant as saying: “To us the LTTE is the only movement that counts and [Tigers’ chief Velupillai] Prabhakaran is the only leader who counts”; the election was more a referendum on the armed struggle; and “[t]he world is saying, alright you fought and did some wonders but what guarantee is there that you have the backing of the people, […] this election will prove 70% to 80% of the Tamil people back the rebels” (Appeal Book, Volume 2, Tab 7, at pages 380-381). • The 2001 TNA election manifesto stated that in 50 years no just solution was found to the Tamil national question: Consequently, it was inevitable, that the armed struggle gained in strength, and the Liberation Tigers of Tamil Eelam came to occupy a paramount position, and play a pivotal role in the struggle of the Tamil nationality to win their rights. It would be futile not to recognize this reality. (Appeal Book, Volume 2, Tab 7, at page 294) • The 2004 election manifesto of the TNA advised: Accepting LTTE’s leadership as the national leadership of the Tamil Eelam Tamils and the Liberation Tigers as the sole and authentic representatives of the Tamil people, let us devote our full cooperation for the ideals of the Liberation Tigers’ struggle with honesty and steadfastness. Let us endeavour determinedly, collectively as one group, one nation, one country, transcending race and religious differences, under the leadership of the LTTE for a life of liberty, honour and justice for the Tamil people. Let us work side by side with the LTTE, who are fighting for the protection and autonomous life of the Tamil speaking people, for the political initiatives under their leadership.", - "current_to": "2015-04-07", + "text": "The IRPA scheme was adopted by Parliament in 2001, as a successor to an analogous scheme contained in the Immigration Act, R.S.C. 1985, c. I-2. In the wake of the attacks of September 11, 2001, it increasingly came to be used as a means of detaining suspected terrorists and eliminating the perceived threat posed by them: K. Roach, “Sources and Trends in Post-9/11 Anti-terrorism Laws”, in B. J. Goold and L. Lazarus, eds., Security and Human Rights (2007), 227, at p. 233. From a practical perspective, the IRPA scheme is in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law: ibid. As will be discussed further below, any information that would be injurious to national security or to the safety of any person is not disclosed to the named person. This information can nevertheless be presented to the designated judge in closed hearings and relied upon by her in assessing the security certificate’s reasonableness.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-108889-10", + "id": "scc-13643-4", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 32–33", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 8–9", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "[Emphasis added.] (Appeal Book, Volume 2, Tab 7, at page 292) • The International Crisis Group reported in 2008 that the TNA’s platform was “pro-LTTE” and the TNA members of parliament chose “not to risk taking political positions independent from the LTTE” (Appeal Book, Volume 4, Tab 13, at page 1233). • In a speech delivered in South Africa, the appellant stated “And we the Eelam Tamils have decided to fight. We shall fight, but we want your help. We shall fight in the sea; we shall fight in the air: we shall fight in the land and when we fight it out and we have nothing but blood, toil and tears to give to our country” (Appeal Book, Volume 6, Tab 17, at pages 1644-1645).\n\nIn an interview conducted by an Inland Enforcement Officer, the appellant stated that the LTTE leader, Prabhakaran, had not initiated the TNA but “would have given his blessings” because “they are both fighting for the same cause” and he “knew that the TNA is being formed for Tamil cause” (Appeal Book, Volume 1, Tab 6, at pages 172-173). The appellant agreed “that TNA members were aligned with LTTE in Tamil cause” (Appeal Book, Volume 1, Tab 6, at page 182). Before the Immigration Division the appellant testified that while the LTTE’s violence was not ideal, “mass confrontation of the government was something unavoidable though unpalatable” (Appeal Book, Volume 6, Tab 18, at page 1678).", - "current_to": "2015-04-07", + "text": "The constitutionality of the IRPA scheme was challenged by Mr. Harkat and other non-citizens named in security certificates. In Charkaoui I, this Court found that the IRPA scheme deprived named persons of their life, liberty, and security of the person in a manner that was not in accordance with principles of fundamental justice, contrary to s. 7 of the Charter . It found that the IRPA scheme precluded the judge from making a decision based on all the relevant facts and law, because it did not provide for representation of the named person in the closed portion of the proceedings. It also held that the IRPA scheme violated the principle that a person must have the ability to know and meet the case against him, because there was not full disclosure of the government’s case to the named person or any substantial substitute for full disclosure.\n\nThe Court concluded that these breaches could not be justified under s. 1 of the Charter , because the IRPA scheme did not minimally impair the named person’s rights. Other types of closed proceedings, both in Canada and abroad, accomplished the goal of protecting confidential national security information less intrusively. For example, in the United Kingdom, special advocates were appointed to receive disclosure on an appellant’s behalf and to defend his or her interests in closed hearings before the Special Immigration Appeals Commission. These special advocates were bound not to reveal confidential information to anyone or (subject to narrow exceptions) to communicate with the appellant. While that system was not without its drawbacks, this Court concluded that, “without compromising security, it better protects the named person’s s. 7 interests”: Charkaoui I, at para. 86.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-108889-11", + "id": "scc-13643-5", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 34–36", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 10–12", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellant admitted to attending a number of meetings with senior members of the LTTE and his shared goals with the LTTE. He stated his view of the inevitability of the LTTE’s armed struggle. Specifically: • The appellant quoted Prabhakaran as stating “we had to join the work as a team” with “[the LTTE] agitating the armed struggle and [the TNA] agitating Parliament struggle only, we call it the over ground movement” (Appeal Book, Volume 1, Tab 6, at page 177). • While denying that he received “directions” from Prabhakaran, the appellant considered the TNA parliamentary agitation “running parallel” with and sharing the “goal” of the LTTE (Appeal Book, Volume 1, Tab 6, at page 184). • While his own role was limited to parliamentary activism, the appellant considered armed struggle to be “part of any freedom struggle” and considered the LTTE’s armed struggle “unavoidable” (Appeal Book, Volume 1, Tab 6, at page 199).\n\nThe appellant argues that the Immigration Division ignored evidence that was favourable to the appellant.\n\nHowever, it is settled law that an adjudicator is not required to refer to every piece of evidence. More importantly, the evidence before the Immigration Division was conflicting. The reasons of the Immigration Division demonstrate that the member sifted through the record and was alive to the appellant’s challenge to the credibility of certain documents. The Immigration Division’s findings were amply supported on the record before the Immigration Division.", - "current_to": "2015-04-07", + "text": "In response to this Court’s ruling, Parliament made several amendments to the IRPA scheme: An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S.C. 2008, c. 3; the amended IRPA scheme is reproduced in the Appendix to these reasons. In particular, it created a role for special advocates, who protect the interests of the named person in closed hearings after having received disclosure of the entire record. B. The Proceedings\n\nIn 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration issued a first security certificate declaring Mr. Harkat inadmissible to Canada on national security grounds. After the successful constitutional challenge and the amendment of the IRPA scheme, the ministers issued a second security certificate against Mr. Harkat and commenced new proceedings before the Federal Court.\n\nDisclosure issues arose during the proceedings with respect to the individuals (the “human sources”) who secretly provided information regarding Mr. Harkat to the Canadian Security Intelligence Service (“CSIS”). The special advocates sought to obtain disclosure of the identity of the CSIS human sources, as well as permission to interview and to cross-examine them in a closed hearing. Noël J. rejected this request. He reasoned that the common law police informer privilege, which is a rule against the disclosure of any information that might identify a police informer, should be extended to cover CSIS human sources: 2009 FC 204, [2009] 4 F.C.R. 370.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-108889-12", + "id": "scc-13643-6", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 37–38", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 13–14", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Section 33 of the Act requires only “reasonable grounds to believe” that facts giving rise to inadmissibility are present. In my view, the Immigration Division’s conclusion that there were “reasonable grounds to believe” in this case was within the range of outcomes acceptable and defensible on the facts and the law. The decision was therefore reasonable.\n\nFor these reasons, I would dismiss the appeal. I would answer the certified question as follows: Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 does not change the existing legal test for assessing membership in terrorist organizations under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. “Eleanor R. Dawson” J.A. “I agree. David Stratas J.A.” “I agree. Richard Boivin J.A.”", - "current_to": "2015-04-07", + "text": "At a later point during the disclosure process, it was discovered that the judge and the special advocates had been provided with an incomplete and misleading document regarding one of the CSIS human sources. The document provided to Mr. Harkat’s special advocates failed to disclose that a 2002 polygraph test conducted on the relevant source initially revealed him or her to be untruthful. As a remedy, Noël J. ordered the disclosure of unredacted human source files to the special advocates: 2009 FC 553, 345 F.T.R. 143; 2009 FC 1050, [2010] 4 F.C.R. 149.\n\nThe special advocates also sought to compel the ministers to obtain updated information from foreign intelligence agencies on several alleged terrorists with whom Mr. Harkat was claimed to have associated. They were ultimately dissatisfied with the efforts undertaken by the ministers and sought a stay of proceedings. Noël J. rejected this request, finding that the ministers took reasonable steps to get updated information from foreign intelligence agencies: 2010 FC 1243, 380 F.T.R. 255, at Annex “A”.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-1", + "id": "scc-13643-7", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 1–5", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 15–17", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The issue in this appeal is whether the appellant is a member of a criminal organization so as to deny him the right of appeal to the Immigration Appeal Division (the IAD) on the question of whether he is inadmissible pursuant to paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).\n\nThis is an appeal against the decision of the Federal Court, dated September 6, 2005, reported as (2005), 258 D.L.R. (4th) 303, which upheld the decision of the Immigration Division of the Immigration and Refugee Board (the Board), wherein it issued a deportation order against the appellant on the grounds of organized criminality pursuant to paragraph 37(1)(a) of the IRPA.\n\nThe following questions were certified by the Judge: (a) Do the words “being a member of an organization” in paragraph 37(1)(a) of the IRPA include a person who was not a member at the time of reporting but was a member before that time? (b) What constitutes an “organization” within the meaning of paragraph 37(1)(a) of the IRPA, and does the A.K. Kannan gang fit within that meaning?\n\nThe appellant raised an additional issue as to whether the Judge erred in determining that the Board was entitled to consider certain police officers’ reports and testimony, in particular evidence about alleged criminal activity that was not followed by charges or convictions.\n\nThe facts may be briefly summarized. The appellant is a 35‑year-old citizen of Sri Lanka. He arrived in Canada in February 1990 and made a successful claim to be a Convention refugee. He became a permanent resident on July 17, 1992.", - "current_to": "2006-10-12", + "text": "Mr. Harkat also sought to have the summaries of intercepted conversations excluded from the evidence on the ground that the original recordings and notes of these conversations, in which he allegedly participated or in which he was allegedly a subject of conversation, were destroyed pursuant to CSIS policy OPS-217. Alternatively, he sought a stay of proceedings in consideration of a number of breaches. Noël J. found that Mr. Harkat suffered no prejudice from the destruction of those original operational materials: 2010 FC 1243. He reasoned that the summaries of the conversations were prepared in a way that ensured their accuracy, and that they were corroborated by the overall narrative about Mr. Harkat which emerged during the hearings. Consequently, he refused to exclude them from the evidence against Mr. Harkat.\n\nFinally, Mr. Harkat challenged the constitutionality of the amended IRPA scheme. Noël J. found the regime to be constitutional: 2010 FC 1242, [2012] 3 F.C.R. 432. In his view, the special advocates provided a substantial substitute for full disclosure to Mr. Harkat and vigorously defended his interests during the closed portion of the proceedings.\n\nAfter consideration of evidence tendered in both public and closed hearings, Noël J. came to the conclusion that the certificate declaring Mr. Harkat inadmissible to Canada was reasonable: 2010 FC 1241, [2012] 3 F.C.R. 251. He made adverse findings of credibility against Mr. Harkat and found that the evidence provided reasonable grounds to believe that Mr. Harkat had been involved with terrorist organizations. He held that Mr. Harkat’s behaviour and lies were consistent with the theory that he had come to Canada as a “sleeper” agent for terrorist organizations.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-2", + "id": "scc-13643-8", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 6–8", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 18–21", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellant has three criminal convictions: (1) failing to comply with a recognizance, dated January 24, 1992; (2) trafficking in a narcotic, dated July 8, 1996; and (3) obstructing a peace officer, dated February 1998. The appellant has also been investigated but never charged for gang‑related occurrences for his role in numerous offences which included attempted murder, assault with a weapon, aggravated assault, possession of a weapon dangerous to the public, pointing a firearm and using a firearm to commit an offence, threatening, extortion, and trafficking.\n\nThe appellant was identified by the Toronto police as the leader of A.K. Kannan, one of two rival Tamil gangs operating in Toronto. The appellant admitted his former involvement in the gang to police. He also admitted, in a statement to police on April 9, 2001, that his nickname is “A.K. Kannan”, the same name of the group of which he is alleged to be a member.\n\nThe appellant was reported under paragraph 27(1)(d) [as am. by S.C. 1992, c. 49, s. 16(F)] of the Immigration Act, R.S.C., 1985, c. I‑2 (repealed) (the former Act), by virtue of his drug trafficking conviction. He was subsequently reported under paragraph 27(1)(a) [as am. idem] and 19(1)(c.2) [as am. by S.C. 1996, c. 19, s. 83] of the former Act as a person for whom there are reasonable grounds to believe is engaged in activity planned and organized by a number of persons acting together to commit criminal offences. The allegation was that the appellant “is or was a member of an organization known as the A.K. Kannan gang”.", - "current_to": "2006-10-12", + "text": "Mr. Harkat appealed Noël J.’s conclusions. The Federal Court of Appeal (per Létourneau J.A.) allowed the appeal in part: 2012 FCA 122, [2012] 3 F.C.R. 635. It agreed with Noël J.’s conclusion that the amended IRPA scheme is constitutional. However, it found that the identity of CSIS human sources is not protected by privilege. It also excluded from the evidence the summaries of intercepted conversations to which Mr. Harkat had not been privy. It remitted the matter to Noël J. for redetermination on the basis of what remained of the record after the exclusion of the summaries. II. Issues\n\nThe ministers appeal to this Court, seeking the reinstatement of Noël J.’s conclusion that the security certificate was reasonable. They also ask for recognition of the CSIS human source privilege.\n\nMr. Harkat cross-appeals. He asks this Court to find the amended IRPA scheme unconstitutional. Alternatively, he seeks a new reasonableness hearing before a new designated judge, the exclusion of the summaries of all the intercepted conversations for which the original CSIS operational materials were destroyed, and permission for his special advocates to interview and cross-examine the human sources. He also takes issue with Noël J.’s weighing of “open source” evidence (such as books on terrorism and publications in political science periodicals), which led him to conclude that the individuals with whom Mr. Harkat associated were members of terrorist organizations.\n\nIn addition, the special advocates contest Noël J.’s refusal to order a stay of proceedings. They contend that the ministers breached their duties of candour and utmost good faith, and that the proceedings did not allow them to meaningfully test the case brought against Mr. Harkat.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-3", + "id": "scc-13643-9", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 9–12", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 22–23", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "An inquiry under the former Act commenced in January 2002. When the IRPA came into force in June 2002, the inquiry continued under sections 36 and 37 of the IRPA. The appellant conceded that he was a person described in section 36 due to his drug trafficking conviction, but he disputed the organized criminality allegation.\n\nThe importance of the inquiry to the appellant was that, unless he was found not to be a person described in paragraph 37(1)(a) of the IRPA, the appellant would be deported to Sri Lanka without a right of an appeal to the IAD, having regard to subsection 64(1) of the IRPA.\n\nThe Board made a finding on October 4, 2004 that the appellant is inadmissible for organized criminality pursuant to paragraph 37(1)(a) of the IRPA because he was a member of an organization, the A.K. Kannan gang, believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable by indictment under an Act of Parliament. Being unable to appeal to the IAD, the appellant applied for judicial review to the Federal Court.\n\nOn judicial review, the Federal Court Judge upheld the Board’s determination regarding the appellant’s inadmissibility to Canada. That decision is the subject of this appeal.", - "current_to": "2006-10-12", + "text": "This appeal raises the following issues: A. Does the IRPA scheme violate the Charter ? B. Are CSIS human sources covered by privilege and can they be cross-examined? C. Did the designated judge err in refusing to exclude the summaries of intercepted conversations? D. Did the ministers breach their duties of candour and utmost good faith? E. Were the proceedings against Mr. Harkat fair? F. Did the designated judge err in concluding that the security certificate was reasonable? III. Analysis Preliminary Comment\n\nAt the request of the ministers, this Court conducted two distinct hearings on this appeal. One was open to the public, while the second was held behind closed doors. Having heard the confidential submissions, it is my view that it was unnecessary to conduct a portion of the appeal hearing behind closed doors.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-4", + "id": "scc-13643-10", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 13", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 24–25", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The provisions in the IRPA most relevant to this appeal are as follows. Objectives – Immigration Objet en matière d’immigration 3.(1) The objectives of this Act with respect to immigration are 3.1 En matière d’immigration, la présente loi a pour objet: … […] (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité; … […] Rules of interpretation Interprétation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.", - "current_to": "2006-10-12", + "text": "The open court principle is “a hallmark of a democratic society and applies to all judicial proceedings”: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 23; see also D. M. Paciocco, “When Open Courts Meet Closed Government” (2005), 29 S.C.L.R. (2d) 385, at pp. 391-95; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 20. “National security does not negate the open court principle”: C. Forcese, National Security Law: Canadian Practice in International Perspective (2008), at p. 402. The Supreme Court of the United Kingdom recently commented unfavourably on a hearing that it held behind closed doors at the request of the government, which had raised national security concerns: Bank Mellat v. H. M. Treasury, [2013] UKSC 38, [2013] 4 All E.R. 495, at para. 60, per Lord Neuberger P.S.C. It noted that closed evidence is factual in nature, whereas the points debated before appellate courts are essentially legal: ibid. Consequently, the Supreme Court found that closed hearings before it would rarely, if ever, be necessary for the proper disposition of an appeal.\n\nThe issues in this appeal do not turn on confidential information and could have been debated fully in public without any serious risk of disclosure, supplemented where necessary by brief closed written submissions and by the closed record. The special advocates could have been given judicial permission to make public submissions, so long as they refrained from disclosing confidential information: see s. 85.4(2) and (3) of the Immigration and Refugee Protection Act (“IRPA ”).", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-5", + "id": "scc-13643-11", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 13", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 26–30", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "… […] Organized criminality Activités de criminalité organisée 37.(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for 37.(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants : (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan; (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.", - "current_to": "2006-10-12", + "text": "The content of the closed hearing overlapped significantly with the open hearing and did not assist this Court in deciding the issues before it. It served only to foster an appearance of opacity of these proceedings, which runs contrary to the fundamental principles of transparency and accountability.\n\nI now turn to the issues on appeal. A. Does the IRPA Scheme Violate the Charter ?\n\nMr. Harkat and his special advocates contend that the IRPA scheme fails to provide a fair process to the named person, as required by s. 7 of the Charter . They argue that the regime is unconstitutional because it provides insufficient disclosure to the named person, does not allow the special advocates to communicate freely with the named person, and allows for the admission of hearsay evidence.\n\nAfter providing a brief overview of the IRPA scheme, I will address in turn Mr. Harkat’s rights under s. 7 of the Charter , the principles that guide the scheme, and the scheme’s alleged defects. (1) Overview of the IRPA Scheme (a) Commencement of Proceedings\n\nA security certificate may be issued by the ministers for the removal from Canada of a non-citizen (whether a permanent resident or a foreign national) who is inadmissible on security grounds. The grounds for inadmissibility include engaging in terrorism, being a danger to the security of Canada, engaging in acts of violence that would or might endanger the lives or safety of persons in Canada, or being a member of an organization that engages in terrorism: s. 34 , IRPA . The ministers must have reasonable grounds to believe that the facts giving rise to inadmissibility have occurred, are occurring, or may occur: s. 33 , IRPA .", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-6", + "id": "scc-13643-12", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 13–16", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 31–34", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "(2) The following provisions govern subsection (1): (2) Les dispositions suivantes régissent l’application du paragraphe (1): (a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and (a) les faits visés n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national; (b) paragraph (1) (a) does not lead to a determination of inadmissibility by reason of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity. (b) les faits visés à l’alinéa (1)a) n’emportent pas interdiction de territoire pour la seule raison que le résident permanent ou l’étranger est entré au Canada en ayant recours à une personne qui se livre aux activités qui y sont visées.\n\nThe first certified question concerns whether the words in paragraph 37(1)(a) “being a member” include a person who was not a member of a criminal organization at the time of the inadmissibility report, but was a member before that time.\n\nThis requires the Court to assess the proper interpretation of the language in paragraph 37(1)(a) of the IRPA. The interpretation of statutes is generally considered to be a question of law; therefore, the standard of review to be applied on this appeal of the case is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraph 8.\n\nThe Federal Court Judge held that paragraph 37(1)(a) includes a person who was a member of a criminal organization before the inadmissibility report. For the following reasons, I agree.", - "current_to": "2006-10-12", + "text": "As a practical matter, the process commences when CSIS presents a Security Intelligence Report (“SIR”) to the ministers. The SIR sets out in detail the allegations and evidence grounding inadmissibility. If the ministers conclude that the allegations in the SIR are reasonably grounded, they issue a security certificate.\n\nOnce the certificate is issued, the ministers must refer it to the Federal Court: s. 77(1) , IRPA . The Federal Court judge who is designated to hear the case “shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not”: s. 78 , IRPA . If the designated judge deems the certificate to be reasonable, the named person is inadmissible and the certificate becomes a removal order in force: s. 80 , IRPA . The named person may be arrested and detained for the duration of the proceedings before the Federal Court: s. 81 , IRPA . (b) The Disclosure of Summaries to the Named Person\n\nThe named person must be given summaries of the information and evidence which allow him to be reasonably informed of the case against him: ss. 77(2) and 83(1) (e), IRPA . The summaries must “not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed”: s. 83(1) (e), IRPA . (c) Special Advocates\n\nThe judge must appoint one or more special advocates to protect the interests of the named person in closed hearings: s. 83(1) (b), IRPA . These hearings are held in camera and ex parte, in order to permit the Minister to present information and evidence the public disclosure of which could be injurious to national security or endanger the safety of a person: s. 83(1) (c), IRPA .", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-7", + "id": "scc-13643-13", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 17", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 35–36", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "First, this meaning is consistent with the wording of the former Act. Paragraph 19(1)(c.2) of the former Act specifically referred to those who “are or were members”. It read: Inadmissible persons Personnes non admissibles 19.(1) No person shall be granted admission who is a member of any of the following classes: 19.(1) Les personnes suivantes appartiennent à une catégorie non admissible : …. […] (c.2) persons who there are reasonable grounds to believe are on were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and substances Act that my be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; c.2) celles dont il y a des motifs raisonnables de croire qu’elles sont ou ont été membres d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l’étranger un fait—acte ou omission—qui, s’il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l’intérêt national;", - "current_to": "2006-10-12", + "text": "Special advocates are security-cleared lawyers whose role is to protect the interests of the named person and “to make up so far as possible for the [named person’s] own exclusion from the evidentiary process”: S. Sedley, “Terrorism and security: back to the future?”, in D. Cole, F. Fabbrini and A. Vedaschi, eds., Secrecy, National Security and the Vindication of Constitutional Law (2013), 13, at p. 16. During the closed hearings, they perform the functions that the named person’s counsel (the “public counsel”) performs in the open hearings. They do so by challenging the Minister’s claims that information or evidence should not be disclosed, and by testing the relevance, reliability, and sufficiency of the secret evidence: s. 85.1(1) and (2) , IRPA . They are active participants in the closed hearings. They may make submissions and cross-examine witnesses who appear in those hearings: s. 85.2 (a) and (b), IRPA . The IRPA scheme also provides that the special advocates may “exercise, with the judge’s authorization, any other powers that are necessary to protect the interests” of the named person: s. 85.2 (c), IRPA .\n\nNo solicitor-client relationship exists between the special advocates and the named person: s. 85.1(3) , IRPA . However, solicitor-client privilege is deemed to apply to exchanges between the special advocates and the named person, provided that those exchanges would attract solicitor-client privilege at common law: s. 85.1(4) , IRPA . As Lutfy C.J. put it, “[a]s between special advocates and named persons, Division 9 protects information and not relationships. . . . The information that passes between them, absent the solicitor and client relationship, is deemed to be protected”: Almrei (Re), 2008 FC 1216, [2009] 3 F.C.R. 497, at paras. 56-57.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-8", + "id": "scc-13643-14", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 18–20", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 37–38", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "One of Parliament’s objectives when enacting the IRPA was to simplify the former Act. Section 33 does just that: it reduces the necessary repetition of the phrases denoting past, present and future membership in the former Act by establishing a “rule of interpretation” that permits a decision maker to consider past, present and future facts when making a determination as to inadmissibility.\n\nIf one were to interpret paragraph 37(1)(a) as including only present membership in an organization, it would, in effect, render section 33 redundant. The Board said (at page 49), and I concur, that consideration of evidence of a person’s history and future plans would be relevant to the question of whether a person is currently a member of an organization described in section 37, even without codification to such effect in legislation.\n\nIn my view, Parliament must have intended section 33 to have some meaning. The language of section 33 is clear that a present finding of inadmissibility, which is a legal determination, may be based on a conclusion of fact as to an individual’s past membership in an organization. In other words, the appellant’s past membership in the A.K. Kannan gang, a factual determination, can be the basis for a legal inadmissibility finding in the present.", - "current_to": "2006-10-12", + "text": "Strict communication rules apply to special advocates, in order to prevent the inadvertent disclosure of sensitive information. After the special advocates are provided with the confidential information and evidence, they “may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate”: s. 85.4(2) , IRPA . Read plainly, “this prohibition covers all information about the proceeding from both public and private sessions, including any testimony given in the absence of the public and the named person and their counsel”: Almrei, at para. 16. By contrast, any other person — such as the ministers’ counsel or the court personnel in attendance at closed hearings — is subject to significantly fewer restrictions on communication. Other persons must refrain from communicating about the proceedings only (i) if they have had a court-authorized communication with the special advocates and the judge has specifically prohibited them from communicating with anyone else about the proceeding, or (ii) if the communication would disclose the content of a closed hearing: ss. 85.4(3) , 85.5 (a) and (b), IRPA . (d) Admissibility of Evidence\n\nThe usual rules of evidence do not apply to the proceedings. Instead, “the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence”: s. 83(1) (h), IRPA .", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-9", + "id": "scc-13643-15", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 21–22", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 39–41", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Second, this interpretation is consistent with the purpose of the inadmissibly provisions and the IRPA as a whole. The inadmissibility provisions have, as one of their objectives, the protection of the safety of Canadian society. They facilitate the removal of permanent residents who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism. If one were to interpret “being a member” as including only present membership in an organization described in paragraph 37(1)(a), this would have a contrary effect, by narrowing the scope of persons who are declared inadmissible, thereby increasing the potential risk to Canadian safety.\n\nThird, if the Court were to interpret “being a member” as including only current members, it would lead to absurd results that could not have be intended by Parliament. This would mean that sections 34 (terrorism/security), 35 (crimes against humanity), and 37 (organized criminality) of the IRPA, all of which use the wording “being a member” or “being a prescribed senior official,” would only refer to current circumstances.", - "current_to": "2006-10-12", + "text": "The IRPA scheme provides that the judge’s decision can be based on information or evidence that is not disclosed in summary form to the named person: s. 83(1)(i). It does not specify expressly whether a decision can be based in whole, or only in part, on information and evidence that is not disclosed to the named person. (2) The Section 7 Charter Right to a Fair Process\n\nIn Charkaoui I, this Court found that the IRPA scheme engages significant life, liberty, and security of the person interests: paras. 12-16. Laws that interfere with these interests must conform to the principles of fundamental justice. If they fail to do so, they breach s. 7 of the Charter and fall to be justified under s. 1 of the Charter .\n\nPursuant to the principles of fundamental justice, a named person must be provided with a fair process: Charkaoui I, at paras. 19-20. At issue in the present appeal are two interrelated aspects of the right to a fair process: the right to know and meet the case, and the right to have a decision made by the judge on the facts and the law. The named person must “be informed of the case against him or her, and be permitted to respond to that case”: Charkaoui I, at para. 53. Correlatively, the named person’s knowledge of the case and participation in the process must be sufficient to result in the designated judge being “exposed to the whole factual picture” of the case and having the ability to apply the relevant law to those facts: ibid., at para. 51.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-10", + "id": "scc-13643-16", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 23–24", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 42–45", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Such an interpretation would also mean that a former member of the Nazi party in Germany could not be found inadmissible because the Nazi party no longer exists, so that he is no longer a member. It would mean that a member of an international terrorist organization could renounce his or her membership immediately prior to making a refugee claim, and would not be inadmissible because he is not a current member of a terrorist organization. It would also mean that a person who spends 10 years as a member of an organization engaged in criminal activities within Canada could withdraw from the organization before being reported under the IRPA and avoid a finding of inadmissibility.\n\nFourth, the jurisprudence supports this interpretation. In Zündel (Re) (2005), 251 D.L.R. (4th) 511 (F.C.), the Federal Court addressed whether past wrongdoing can constitute the basis for inadmissibility under section 34 of the IRPA. Pursuant to paragraph 34(1)(f), a person can be found to be inadmissible for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a) [espionage], (b) [subversion by force of any government] or (c) [terrorism].” Blais J. held (at paragraph 18) that an admissibility determination under section 34 cannot be restricted to present circumstances. Pursuant to section 33, “the [Minister] can provide evidence or information of past, present or anticipated future circumstances of . . . inadmissibility on security grounds.”", - "current_to": "2006-10-12", + "text": "This said, the assessment of whether a process is fair must take into account the legitimate need to protect information and evidence that is critical to national security. As I wrote in Charkaoui I, “[i]nformation may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security”: para. 61.\n\nFull disclosure of information and evidence to the named person may be impossible. However, the basic requirements of procedural justice must be met “in an alternative fashion appropriate to the context, having regard to the government’s objective and the interests of the person affected”: Charkaoui I, at para. 63. The alternative proceedings must constitute a substantial substitute to full disclosure. Procedural fairness does not require a perfect process — there is necessarily some give and take inherent in fashioning a process that accommodates national security concerns: Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, at para. 46.\n\nThe overarching question, therefore, is whether the amended IRPA scheme provides a named person with a fair process, taking into account the imperative of protecting confidential national security information. (3) The Guiding Principles of the IRPA Scheme\n\nThe alleged defects in the IRPA scheme must be assessed in light of the scheme’s overall design. Two central principles guide the scheme.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-11", + "id": "scc-13643-17", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 25", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 46–47", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "More recently, in Charkaoui (Re), [2005] 2 F.C.R. 299 (F.C.A.), appeal to the Supreme Court of Canada [reversed on (2007), 358 N.R. 1, 2007 SCC 9] granted, this Court was concerned with whether there were reasonable grounds to believe that Charkaoui was inadmissible pursuant to section 34 on account of being a member of a terrorist organization. Décary and Létourneau JJ.A. stated (at paragraph105): “inadmissibility must be based, under section 33 of the IRPA, on the Minister’s reasonable grounds to believe that the acts or omissions referred to in sections 34 to 37 have occurred, are occurring or, if preventive considerations are involved, may occur.”", - "current_to": "2006-10-12", + "text": "First, the designated judge is intended to play a gatekeeper role. The judge is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers’ finding of inadmissibility, but also that the overall process is fair: “. . . in a special advocate system, an unusual burden will continue to fall on judges to respond to the absence of the named person by pressing the government side more vigorously than might otherwise be the case” (C. Forcese and L. Waldman, “Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of ‘Special Advocates’ in National Security Proceedings” (2007) (online), at p. 60). Indeed, the IRPA scheme expressly requires the judge to take into account “considerations of fairness and natural justice” when conducting the proceedings: s. 83(1) (a), IRPA . The designated judge must take an interventionist approach, while stopping short of assuming an inquisitorial role.\n\nSecond, participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the named person in those hearings. With respect to the confidential portion of the case against the named person, the special advocates must be in a position to act as vigorously and effectively as the named person himself would act in a public proceeding. Indeed, Parliament added special advocates as a feature of the IRPA scheme in order to bring it into compliance with the substantive requirements of s. 7 of the Charter , as articulated in Charkaoui I. Whether the scheme allows for this intention to become a reality is the central constitutional issue in this appeal, to which I now turn. (4) The Alleged Shortfalls of the IRPA Scheme", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-12", + "id": "scc-13643-18", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 26–27", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 48–50", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "This issue was also addressed by Russell J. in the decision of Hussenu v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 137 (F.C.). There, Hussenu argued that he was not inadmissible under paragraph 34(1)(f) of the IRPA because he had ceased to be a member of the Eritrean Liberation Front immediately prior to making a refugee claim. The Court denied the appeal, stating (at paragraph 39): Section 34(1)(f) of IRPA does use the words “being a Member of an organization . . .,” but s. 33 specifically provides that “ . . . facts that constitute inadmissibility under ss. 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts from which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” [emphasis added]. If the Applicant’s argument concerning s. 34(1)(f) were correct on this issue, then s. 34 would not apply to a terrorist who resigns his or her membership in a terrorist organization immediately prior to making a refugee claim. It could not have been Parliament’s intent to exclude such an applicant from the purview of s. 34(1)(f) and s. 33 makes this position clear.\n\nThe appellant submits that an interpretation of paragraph 37(1)(a) as including past members would not permit absolution for persons who were associated with criminal organizations in the past, realized that it is not what they wanted to do with their life, and genuinely withdrew without having engaged in criminal activity.", - "current_to": "2006-10-12", + "text": "In essence, Mr. Harkat alleges that the disclosure of public summaries and the representation of the interests of the named person by special advocates do not suffice to bring the IRPA scheme into compliance with the requirements of s. 7 of the Charter . I will address each of the alleged defects of the scheme in turn. (a) Does the Scheme Provide the Named Person With Sufficient Disclosure?\n\nMr. Harkat contends that the public summaries of the closed record are too vague and general. In his view, they do not allow a named person to know and meet the case against him or her. He argues that the essence of the right to know and meet a case is the ability to meet detail with detail. He also contends that the IRPA scheme takes too categorical an approach to disclosure: a named person will never obtain disclosure of information which would be injurious to national security or to the safety of any person, regardless of the importance of disclosure to the named person’s case. A less rights-impairing alternative would be a balancing approach such as the one found in s. 38.06(2) of the Canada Evidence Act , R.S.C. 1985, c. C-5 (“CEA ”), which permits the public interest in non-disclosure to be balanced against the public interest in disclosure.\n\nIn my view, the IRPA scheme provides sufficient disclosure to the named person to be constitutionally compliant. I base this conclusion on the designated judge’s statutory duty to ensure that the named person is reasonably informed of the Minister’s case throughout the proceedings. (i) The IRPA Scheme Requires an Incompressible Minimum Amount of Disclosure to the Named Person", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-13", + "id": "scc-13643-19", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 28–31", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 51–52", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "This argument is not persuasive. Subsection 37(2) of the IRPA is intended to alleviate the harshness of the inadmissibility rule where, as the appellant suggests, there is evidence of a person’s genuine withdrawal from membership. Provided the permanent resident can satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest, the inadmissibility rule in paragraph 37(1)(a) could be overcome.\n\nBased on all of the above, I answer the first certified question in the affirmative.\n\nThe second certified question in this appeal requires the Court to determine what constitutes an “organization” within the meaning of paragraph 37(1)(a), and in particular, does the A.K. Kannan gang fit within that meaning?\n\nThe answer to the first part of the question, the proper meaning of the word “organization” in view of paragraph 37(1)(a), is a legal determination and is to be reviewed on a correctness standard: Housen, at paragraph 8.", - "current_to": "2006-10-12", + "text": "At first blush, the provisions of the IRPA scheme appear to give precedence to confidentiality of information over the named person’s right to know and meet the case. Section 83(1)(e) provides that, throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed; Thus, the content of the summaries must be tailored to satisfy the overriding proviso that no information or evidence injurious to national security or to the safety of any person may be disclosed.\n\nThe IRPA scheme also provides, at s. 83(1)(i), that the judge may base his decision on information or evidence of which the named person has not been informed in summary form: “[T]he judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national . . .”.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-14", + "id": "scc-13643-20", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 32–33", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 53–55", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The answer to the second part of the question, whether the A.K. Kannan gang falls within the meaning of “organization” for the purposes of paragraph 37(1)(a), is a mixed question of fact and law; it involves applying the legal standard to the facts and evidence in each particular case. In Housen, at paragraph 36, the Supreme Court said: Matters of mixed fact law lie along a spectrum. Where, for instance, an error. . .can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. . . . Where the legal principle is not readily extractible, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.\n\nUnless this Court finds that the Judge incorrectly characterized the law as regards paragraph 37(1)(a), the Judge’s decision that the A.K. Kannan gang falls within the meaning of “organization” will not be reviewed in the absence of a palpable and overriding error: Housen, at paragraph 10.", - "current_to": "2006-10-12", + "text": "The combination of ss. 83(1)(e) and 83(1)(i) could conceivably lead to a situation where the judge makes a decision on the reasonableness of the security certificate despite the fact that the named person has only received severely truncated disclosure. Noël J. even contemplated a scenario where the named person receives virtually no disclosure: “There may come a time when the only evidence to justify inadmissibility on security ground originates from a very sensitive source, and that the disclosure of such evidence, even through a summary, would inevitably disclose the source” (2010 FC 1242, at para. 59). He nevertheless found the disclosure provisions of the IRPA scheme to be constitutional.\n\nIn my view, Noël J. erred in interpreting the IRPA scheme in a manner that allows for that scenario. Charkaoui I makes clear that there is an incompressible minimum amount of disclosure that the named person must receive in order for the scheme to comply with s. 7 of the Charter . He or she must receive sufficient disclosure to know and meet the case against him or her.\n\nParliament amended the IRPA scheme with the intent of making it compliant with the s. 7 requirements expounded in Charkaoui I, and it should be interpreted in light of this intention: R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at paras. 28-29. The IRPA scheme’s requirement that the named person be “reasonably informed” (“suffisamment informé”) of the Minister’s case should be read as a recognition that the named person must receive an incompressible minimum amount of disclosure.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-15", + "id": "scc-13643-21", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 34–35", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 56", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The word “organization” is not defined in the IRPA. The appellant submits that the lack of a statutory definition creates a danger of courts over‑reaching to cover the broadest range of criminal action that may appear to be taken in association with others. According to the appellant, a precise definition is required given the serious consequences of inadmissibility and the fact that membership alone constitutes inadmissibility. In reliance on international law and criminal jurisprudence, the appellant argues that for the purpose of paragraph 37(1)(a), an “organization” must, at minimum, have a common criminal purpose and a sufficient structure to allow the benefits of its illegal conduct to be shared.\n\nIn contrast with this submission, in the case of Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 (F.C.T.D.), Rothstein J., as he then was, held that the term “member” (of an organization), found in subparagraph 19(1)(f)(iii) [as am. by S.C. 1992, c. 49, s. 11] of the former Act, dealing with terrorism and espionage threats to Canadian security, was to be given an unrestricted and broad interpretation. He said, at paragraph 52: The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not easily identifiable. . . . I think it is obvious that Parliament intended the term “member” to be given an unrestricted and broad interpretation. I find no support for the view that a person is not a member as contemplated by the provision if he or she became a member after the organization stopped engaging in terrorism.", - "current_to": "2006-10-12", + "text": "Under the IRPA scheme, a named person is “reasonably informed” if he has personally received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates which will allow them to challenge the information and evidence relied upon by the Minister in the closed hearings. Indeed, the named person’s ability to answer the Minister’s case hinges on the effectiveness of the special advocates, which in turn depends on the special advocates being provided with meaningful guidance and information. As the House of Lords of the United Kingdom put it in referring to disclosure under the British special advocates regime, the named person must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. . . . Where . . . the open material consists purely of general assertions and the case . . . is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be. (Secretary of State for the Home Department v. A.F. (No. 3), [2009] UKHL 28, [2009] 3 All E.R. 643, at para. 59, per Lord Phillips of Worth Matravers) I would add that the named person need not only be given sufficient information about the allegations against him, but also about the evidence on the record.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-16", + "id": "scc-13643-22", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 36–37", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 57–59", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, the same “unrestricted and broad” interpretation should be given to the word “organization” as it is used in paragraph 37(1)(a). The IRPA signifies an intention, above all, to prioritize the security of Canadians. This was confirmed by the Supreme Court of Canada in the decision of Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at paragraph 10: The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. . . . the objectives of the IRPA and its provisions concerning permanent resident, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.\n\nParagraph 37(1)(a) appears to be an attempt to tackle organized crime, in recognition of the fact that non‑citizen members of criminal organizations are as grave a threat as individuals who are convicted of serious criminal offences. It enables deportation of members of criminal organizations who avoid convictions as individuals but may nevertheless be dangerous.", - "current_to": "2006-10-12", + "text": "The level of disclosure required for a named person to be reasonably informed is case-specific, depending on the allegations and evidence against the named person. Ultimately, the judge is the arbiter of whether this standard has been met. At the very least, the named person must know the essence of the information and evidence supporting the allegations. This excludes the scenario where the named person receives no disclosure whatsoever of essential information or evidence.\n\nThe IRPA scheme is silent as to what happens if there is an irreconcilable tension between the requirement that the named person be “reasonably informed”, on the one hand, and the imperative that sensitive information not be disclosed, on the other. The IRPA scheme does not provide that the “reasonably informed” standard can be compromised. But nor does it provide that sensitive information can be disclosed where this is absolutely necessary in order for the “reasonably informed” standard to be met.\n\nIn my view, the necessary outcome of situations where there is an irreconcilable tension is that the Minister must withdraw the information or evidence whose non-disclosure prevents the named person from being reasonably informed. In some cases, this may effectively compel the Minister to put an end to the proceedings.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-17", + "id": "scc-13643-23", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 38", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 60–61", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Recent jurisprudence supports this interpretation. In Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301 (F.C.), reversed on other grounds, [2006] 1 F.C.R. 474 (F.C.A.), O’Reilly J. took into account various factors when he concluded that two Tamil gangs (one of which was the A.K. Kannan gang at issue here) were “organizations” within the meaning of paragraph 37(1)(a) of the IRPA. In his opinion, the two Tamil groups had “some characteristics of an organization”, namely “identity, leadership, a loose hierarchy and a basic organizational structure” (at paragraph 31). The factors listed in Thanaratnam, as well as other factors, such as an occupied territory or regular meeting locations, both factors considered by the Board, are helpful when making a determination under paragraph 37(1)(a), but no one of them is essential.", - "current_to": "2006-10-12", + "text": "To hold that the Minister can rely on essential information and evidence of which the named person cannot be reasonably informed would force the judge to violate the responsibility expressly placed on him by the statute, i.e. his duty to ensure that the named person remain reasonably informed throughout the proceedings. It cannot have been Parliament’s intent to design a scheme in which the judge is required to violate the responsibilities placed upon him. Consequently, the IRPA scheme must be interpreted as precluding the Minister from bringing a case in respect of which the named person cannot be kept reasonably informed. The scheme mandates that the named person remain reasonably informed — i.e. that he be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates — throughout the proceedings. If the named person is not reasonably informed, the proceedings will not have been in compliance with the IRPA scheme and the judge cannot confirm the certificate’s reasonableness. In such a case, the judge must quash the certificate, pursuant to s. 78 of the IRPA . (ii) Only Information or Evidence That Raises a Serious Risk Must Be Withheld\n\nOnly information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person. The judge must ensure throughout the proceedings that the Minister does not cast too wide a net with his claims of confidentiality.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-18", + "id": "scc-13643-24", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 39–40", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 62", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "These criminal organizations do not usually have formal structures like corporations or associations that have charters, by-laws or constitutions. They are usually rather loosely and informally structured, which structures vary dramatically. Looseness and informality in the structure of a group should not thwart the purpose of the IRPA. It is, therefore, necessary to adopt a rather flexible approach in assessing whether the attributes of a particular group meet the requirements of the IRPA given their varied, changing and clandestine character. It is, therefore, important to evaluate the various factors applied by O’Reilly J. and other similar factors that may assist to determine whether the essential attributes of an organization are present in the circumstances. Such an interpretation of “organization” allows the Board some flexibility in determining whether, in light of the evidence and facts before it, a group may be properly characterized as such for the purposes of paragraph 37(1)(a).\n\nWith respect to the appellant’s argument that criminal jurisprudence and international instruments should inform the meaning of a criminal “organization”, I disagree. Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of “criminal organization” as it appears in subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, s. 32, s. 27] of the Criminal Code, R.S.C., 1985, c. C‑46. Nor did it adopt the definition of “organized criminal group” in the United Nations Convention against Transnational Organized Crime [November 2000, GA Res. 55/25] (the Convention). The wording in paragraph 37(1)(a) is different, because its purpose is different.", - "current_to": "2006-10-12", + "text": "While the IRPA scheme provides that closed hearings must be held when the disclosure of information could be injurious (s. 83(1) (c), IRPA ), it mandates the withholding of information from public summaries only if its disclosure would, in the judge’s opinion, be injurious (s. 83(1) (e), IRPA ). The judge must err on the side of caution in ordering closed hearings during which he can ascertain the validity of the Minister’s position with respect to the sensitivity of given information or evidence. However, once the judge has heard the parties, he must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld from the named person. “It is the Ministers who bear the burden of establishing that disclosure not only could but would be injurious to national security, or endanger the safety of any person”: Jaballah, Re, 2009 FC 279, 340 F.T.R. 43, at para. 9, per Dawson J. (emphasis added).", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-19", + "id": "scc-13643-25", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 41–45", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 63–64", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "In this case, the Judge, as did the Board, correctly considered the legislation and applied the law as set out in Thanaratnam, in the interpretation of the term “organization.” Accordingly, I find no error of law relating to the first part of the certified question.\n\nWith respect to the second part of the certified question, the appellant argues that the Judge committed a palpable and overriding error when he upheld the Board’s decision that the A.K. Kannan gang is an organization within the meaning of paragraph 37(1)(a). I disagree.\n\nThe Board considered the evidence before it and found that there were six relevant indicia of “organization” for the A.K. Kannan gang in this case: leadership, an elementary form of hierarchy, the giving of instructions from a leader, a specific and identifying name, an occupied territory, and chosen locations for meeting within their specified territory in Ontario. The Board concluded that all of the evidence taken together was sufficient to conclude that A.K. Kannan was an organization, and the Judge, considering the evidence related to most of the same factors, upheld this decision.\n\nThe appellant submits that the Board ignored his testimony that there was no organization and ignored a report prepared for the Canadian Tamil Youth Development Centre (the CTYDC report), which characterizes Tamil gangs as loose associations with no organizational structure.\n\nThe Board concluded that the appellant was not a credible witness, and gave detailed reasons for its conclusion. Further, the Board considered the CTYDC report and discussed it within its reasons. The Board was entitled to weigh the report and give it little effect in the context of the conflicting evidence. The appellant has failed to show that the Board’s decision was perverse or irrational.", - "current_to": "2006-10-12", + "text": "The judge must be vigilant and skeptical with respect to the Minister’s claims of confidentiality. Courts have commented on the government’s tendency to exaggerate claims of national security confidentiality: Canada (Attorney General) v. Almalki, 2010 FC 1106, [2012] 2 F.C.R. 508, at para. 108; Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80, at paras. 73-77 and 98; see generally C. Forcese, “Canada’s National Security ‘Complex’: Assessing the Secrecy Rules” (2009), 15:5 IRPP Choices 3. As Justice O’Connor commented in his report on the Arar inquiry, overclaiming exacerbates the transparency and procedural fairness problems that inevitably accompany any proceeding that can not be fully open because of [national security confidentiality] concerns. It also promotes public suspicion and cynicism about legitimate claims by the Government of national security confidentiality. (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006), at p. 302)\n\nThe judge is the gatekeeper against this type of overclaiming, which undermines the IRPA scheme’s fragile equilibrium. Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system, requiring a remedy under s. 24(1) of the Charter . (iii) The Absence of a Balancing Approach Does Not Make the Scheme Unconstitutional", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-20", + "id": "scc-13643-26", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 46–50", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 65–66", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Accordingly, the Judge did not commit any palpable and overriding error in upholding the Board’s finding that the A.K. Kannan gang is an “organization” within the meaning of paragraph 37(1)(a) of the IRPA.\n\nParagraph 37(1)(a) of the IRPA applies where an organization of which one is a member is believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment.\n\nThe appellant argues that the Judge erred when he held that the Board was entitled to give weight to the police reports of criminal activity, unsubstantiated by conviction, as evidence of his, or the organization’s, involvement in criminal activity.\n\nIn admissibility hearings the Board is not bound by the strict rules of evidence. Once the tribunal determines that the evidence is credible and trustworthy then it is admissible, and the question of how the evidence was obtained becomes relevant merely as to the weight attached to the evidence: section 173 of the IRPA.\n\nThe jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality: see, for example, Veerasingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1661, at paragraph 11; Thuraisingam v. Canada (Minister of Citizenship and Immigration), (2004) 251 F.T.R. 282 (F.C.), at paragraph 35.", - "current_to": "2006-10-12", + "text": "In addition, Mr. Harkat argues that the IRPA scheme’s approach to disclosure is unconstitutional because it fails to provide for a balancing of countervailing interests. In his view, s. 7 of the Charter requires the adoption of an approach similar to the one found in s. 38.06(2) of the CEA , which allows the judge to order disclosure of national security information if “the public interest in disclosure outweighs in importance the public interest in non-disclosure”.\n\nI would reject this contention. Section 7 of the Charter does not require a balancing approach to disclosure. Rather, it requires a fair process. “There is no free-standing principle of fundamental justice requiring a proper balancing of interests in general, or requiring the balancing of interests in decisions about disclosure”: H. Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 229. Parliament’s choice to adopt a categorical prohibition against disclosure of sensitive information, as opposed to a balancing approach, does not as such constitute a breach of the right to a fair process. (b) Are the Special Advocates a “Substantial Substitute” to Participation by the Named Person?", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-21", + "id": "scc-13643-27", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 51–53", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 67–68", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "In this regard, I agree with the Judge that the Board did not rely on the police source evidence as evidence of the appellant’s wrongdoing. Rather, it considered the circumstances underlying the charges and contemplated charges—including the frequency of the appellant’s interactions with the police and the fact that others involved were often gang members—to establish that there are “reasonable grounds to believe,” a standard that is lower than the civil standard, that the A.K. Kannan gang engages in the type of activity set out in paragraph 37(1)(a).\n\nThe appellant also submits that the police source evidence in this case is not credible and reliable evidence. Many of the police reports were made before a proper investigation, and were not supported by the testimony of the police officers and witnesses that were involved. Further, the appellant argues that the evidence hinted that the police lacked objectivity; that their view of the appellant was biased.\n\nIn this regard, I find that the Board considered the police source evidence credible and trustworthy in the circumstances of the case, and such a decision is entirely within its discretion. The Board is uniquely situated to assess credibility of evidence in an inadmissibility hearing; credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence: Federal Courts Act, R.S.C., 1985, c. F‑7 [section 1 (as am. by S.C. 2002, c. 8, s. 14)], paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27].", - "current_to": "2006-10-12", + "text": "As discussed, the named person and his public counsel do not have access to the closed record, nor can they participate in the closed hearings. Parliament added the role of special advocates to the IRPA scheme so that they could serve as a proxy for the named person in the closed portion of the proceedings. Mr. Harkat argues that the restrictions on the special advocates’ ability to communicate with the named person prevent them from effectively protecting the named person’s interests. Specifically, he claims that communications between the named person and the special advocates should not be subject to restrictions. He also contends that the special advocates will be unable to seek judicial authorization without breaching solicitor-client privilege. As a consequence, in his view, the addition of special advocates to the regime fails to address the concerns voiced by this Court in Charkaoui I.\n\nThe communications restrictions imposed on special advocates are significant, requiring judicial authorization for any communication regarding the proceedings between the special advocates and the named person or a third party, after the special advocates have received confidential materials. However, they do not render the scheme unconstitutional. I come to this conclusion for three reasons.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-35313-22", + "id": "scc-13643-28", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 54–56", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 69", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellant has not demonstrated that the Board’s findings, or the Judge’s acceptance of those facts, were perverse or capricious. Therefore, I find no reviewable error in respect of this issue.\n\nI am satisfied that the Judge correctly interpreted paragraph 37(1)(a) of the IRPA when reviewing the Board’s findings. I would answer the certified questions as follows: (a) The phrase “being a member of an organization” in paragraph 37(1)(a) of the IRPA includes a person who was not a member at the time of the reporting, but was a member before that time. (b) The word “organization”, as it is used in paragraph 37(1)(a) of the IRPA, is to be given a broad and unrestricted interpretation. While no precise definition can be established here, the factors listed by O’Reilly J. in Thanaratnam, by the Board member, and possibly others, are helpful when making a determination, but no one of them is an essential element. The structure of criminal organizations is varied, and the Board must be given flexibility to evaluate all of the evidence in the light of the legislative purpose of the IRPA to prioritize security in deciding whether a group is an organization for the purpose of paragraph 37(1)(a). The A.K. Kannan gang, as found by the Board and the Judge, fits within this meaning.\n\nFor these reasons, I would dismiss the appeal. \"A.M. Linden\" J.A. “I agree. M. Nadon J.A.” “I agree. J. Edgar Sexton J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2006-10-12", + "text": "First, the restrictions on communications by the special advocates are not absolute. They can be lifted with judicial authorization, subject to conditions deemed appropriate by the designated judge: s. 85.4(2) , IRPA . While this process is less fluid and efficient than the unfettered communications that prevail between a lawyer and his client, it should be remembered that s. 7 of the Charter does not guarantee a perfect process. The judicial authorization process gives the designated judge a sufficiently broad discretion to allow all communications that are necessary for the special advocates to perform their duties.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-1", + "id": "scc-13643-29", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 1–3", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 70", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "This is an appeal on a certified question from a decision of Gauthier J. dated October 21, 2003. The certified question is: Are the detention reviews made pursuant to s. 57(2) and 58 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, hearings de novo and does the detained person bear the burden of establishing that he/she is not a danger to the Canadian public or not a flight risk at such reviews? FACTS\n\nThe facts may be briefly summarized. The respondent was arrested on October 18, 2001, on an immigration warrant on the grounds that he was a danger to the public because he was one of the leaders of the VVT, a Tamil gang operating in Toronto. His detention was reviewed under the provisions of section 103 of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) and, after it came into force, sections 57 and 58 of the Immigration and Refugee Protection Act (the new Act). At his first five detention reviews, the respondent's continued detention was ordered. On November 5, 2002, his detention was reviewed by Mr. V. Tumir, a member of the Immigration Division of the Immigration and Refugee Board, who ordered him released on conditions. The Minister applied for judicial review and, in the interim, obtained a stay until the next detention review was completed.\n\nThe next detention review was conducted by Mr. A. Iozzo of the Immigration Division, who on March 18, 2003, confirmed the findings of Mr. Tumir and ordered that the respondent be released. The Minister obtained a stay of that order and sought judicial review. It was this judicial review that was the subject matter of the Order of Gauthier J. of October 21, 2003, and which gives rise to this appeal. ISSUES", - "current_to": "2004-01-09", + "text": "The broad discretion conferred by the IRPA scheme averts unfairness that might otherwise result from the communications restrictions. The designated judge can ensure that the special advocates function as closely as possible to ordinary counsel in a public hearing. The restrictions on communications are designed to avert serious risks of disclosure of information or evidence whose disclosure would be injurious to national security or to the safety of any person. While the IRPA scheme requires the judge to minimize risks of inadvertent disclosure of information, the judge must also give special advocates significant latitude. The special advocates are competent and security-cleared lawyers, who take their professional and statutory obligations seriously. They have the ability to distinguish between the public and confidential aspects of their case. The judge should take a liberal approach in authorizing communications and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real — as opposed to a speculative — risk of injurious disclosure. As much as possible, the special advocates should be allowed to investigate the case and develop their strategy by communicating with the named person, the named person’s public counsel, and third parties who may bring relevant insights and information.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-2", + "id": "scc-13643-30", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 71–72", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The Minister raises two issues. He first says that detention reviews under the new Act are not de novo and that the detained person bears the burden of proving that previous decisions to detain should be set aside. He then says that Mr. Iozzo made errors of law and patently unreasonable errors of fact. Therefore, he says, Gauthier J. erred in not overturning Mr. Iozzo's decision. RELEVANT PROVISIONS Immigration and Refugee Protection Act 57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention. (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention. ... 57. (1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite. (2) Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent. ... 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); ...", - "current_to": "2004-01-09", + "text": "Second, the named person and his public counsel can send an unlimited amount of one-way communications to the special advocates at any time throughout the proceedings. This is significant. As discussed above, the public summaries provided on an ongoing basis to the named person will ensure that he or she is sufficiently informed to provide meaningful guidance and information to the special advocates. These summaries should elicit helpful one-way communications from the named person to the special advocates. And these one-way communications may in turn give rise to requests from the special advocates for judicial permission to communicate with the named person in order to obtain needed clarifications or additional information.\n\nFinally, the record does not support the conclusion that the IRPA scheme is unconstitutional on the basis that the special advocates must necessarily breach solicitor-client privilege in order to obtain judicial permission to communicate. As Noël J. noted, “[t]he question of assessing solicitor-client [privilege] remains theoretical in the case at hand. The requests to communicate presented did not directly or indirectly reveal such information”: 2010 FC 1242, at para. 178. Moreover, the evolving practices of the Federal Court may substantially lessen the tension between judicial authorization and privilege. For example, the special advocates can minimize the risk of revealing their litigation strategy by seeking to make submissions to the designated judge in the absence of the ministers’ lawyers: Almrei, 2008 FC 1216, at para. 65.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-3", + "id": "scc-13643-31", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 73–75", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. ... 58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants_: a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); ... (2) La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi. ... Immigration and Refugee Protection Regulations, SOR/2002-227 47(2) A person who posts a guarantee must ... (b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and ... 47(2) La personne qui fournit la garantie d'exécution doit : ... b) être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; ... 244.", - "current_to": "2004-01-09", + "text": "The issue of how to reconcile the judicial authorization process with solicitor-client privilege should be decided if and when it arises on the facts of a case: Almrei, 2008 FC 1216, at para. 41; Almrei, Re, 2009 FC 322, 342 F.T.R. 11, at para. 24. It may be that an exception to solicitor-client privilege could be recognized in such circumstances: Smith v. Jones, [1999] 1 S.C.R. 455, at para. 53, per Cory J.; Almrei, 2008 FC 1216, at paras. 60-62. Or it may instead be necessary to recognize that, in cases where judicial authorization cannot be granted without a breach of solicitor-client privilege, the proceedings fail to meet the requirements of s. 7 of the Charter and that a remedy should be granted under s. 24(1) of the Charter . (c) Does the Admission of Hearsay Evidence Render the Scheme Unconstitutional?\n\nThe IRPA scheme provides that the usual rules of evidence do not apply to the security certificate proceedings. Rather, any evidence that the judge determines to be “reliable and appropriate” is admissible: s. 83(1) (h), IRPA . It is argued that this denies the named person’s s. 7 Charter rights, since the special advocates will be unable to meaningfully test the evidence.\n\nIt is true that some evidence which is admissible under the IRPA scheme cannot be tested for reliability and accuracy in the usual manner. For example, the IRPA scheme would allow the admission of a foreign intelligence agency’s report that the judge deems “reliable and appropriate”, despite the fact that it is hearsay. The special advocates will not have had the opportunity to cross-examine the foreign sources quoted in the report or the operatives who compiled it.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-4", + "id": "scc-13643-32", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 76", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act; (b) is a danger to the public; ... 244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation : a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; b) du danger que constitue l'intéressé pour la sécurité publique; ... 245. For the purposes of paragraph 244(a), the factors are the following: ... (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding; (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal; (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so; ... (g) the existence of strong ties to a community in Canada. 245. Pour l'application de l'alinéa 244a), les critères sont les suivants : ... c) le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle; d) le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi; e) le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard; ...", - "current_to": "2004-01-09", + "text": "While s. 83(1) (h) of the IRPA may result in the admission of hearsay evidence and deny the special advocates the ability to cross-examine sources, it does not violate s. 7 of the Charter . As this Court recognized in R. v. L. (D.O.), [1993] 4 S.C.R. 419, “the rules of evidence have not been constitutionalized into unalterable principles of fundamental justice”: p. 453, per L’Heureux-Dubé J. As discussed, s. 7 guarantees a fundamentally fair process. The rule against hearsay evidence and the right to cross-examine witnesses simply provide a means towards such a process, by screening out unreliable evidence: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 48. The IRPA scheme achieves this purpose of excluding unreliable evidence by alternative means. It provides the designated judge with broad discretion to exclude evidence that is not “reliable and appropriate”. This broad discretion allows the judge to exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person. (5) Concluding Remarks on the Constitutionality of the IRPA Scheme", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-5", + "id": "scc-13643-33", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 77–80", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "g) l'appartenance réelle à une collectivité au Canada. 246. For the purposes of paragraph 244(b), the factors are the following: ... (b) association with a criminal organization within the meaning of subsection 121(2) of the Act; ... (d) conviction in Canada under an Act of Parliament for ... (ii) an offence involving violence or weapons; ... 246. Pour l'application de l'alinéa 244b), les critères sont les suivants : ... b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi; ... d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes : ... (ii) infraction commise avec violence ou des armes; ... 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. 248. S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé; e) l'existence de solutions de rechange à la détention.", - "current_to": "2004-01-09", + "text": "I have concluded that the impugned provisions of the IRPA scheme are constitutional. They do not violate the named person’s right to know and meet the case against him, or the right to have a decision made on the facts and the law. However, it must be acknowledged that these provisions remain an imperfect substitute for full disclosure in an open court. There may be cases where the nature of the allegations and of the evidence relied upon exacerbate the limitations inherent to the scheme, resulting in an unfair process. In light of this reality, the designated judge has an ongoing responsibility to assess the overall fairness of the process and to grant remedies under s. 24(1) of the Charter where appropriate — including, if necessary, a stay of proceedings. B. Are CSIS Human Sources Covered by Privilege and Can They Be Cross-Examined?\n\nMr. Harkat’s special advocates ask the Court for an order permitting them to interview and cross-examine the CSIS human sources relied upon by the Minister in the case against him. Noël J. denied this order, holding that the identity of the sources and information which tends to reveal their identity is covered by a common law “class” privilege.\n\nThe Federal Court of Appeal disagreed. It held that, unlike police informers, CSIS human sources are not protected by common law class privilege. However, it did not deal with whether the human sources could be cross-examined.\n\nI agree with the Federal Court of Appeal that CSIS human sources are not protected by a class privilege. However, this is not to say that they are left entirely unprotected by the security certificate regime. The IRPA scheme provides a mechanism to protect their identity, as I will now discuss. (1) Does Privilege Attach to CSIS Human Sources?", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-6", + "id": "scc-13643-34", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 81–84", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Immigration Act 103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where (a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and (b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada. ... (6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.", - "current_to": "2004-01-09", + "text": "It is important to note at the outset that the IRPA scheme provides protection for the identity of sources and of information that tends to reveal that identity. Indeed, the starting point under the IRPA scheme is that all information whose disclosure would be injurious to national security or endanger the safety of a person is protected from disclosure to the named person and to the public: s. 83(1)(d). In most cases, the disclosure of the identity of human sources would both be injurious to national security and endanger the safety of those sources. Consequently, their identity will generally be protected from disclosure under the IRPA scheme.\n\nAs a limited exception to this general principle of non-disclosure, the IRPA scheme provides that special advocates get full disclosure of all the evidence provided by the Minister to the judge: s. 85.4(1). The Minister has no obligation, however, to disclose privileged materials to anyone.\n\nIt thus becomes necessary to determine whether the identities of CSIS human sources, and related information, are privileged. But it is important to bear in mind that even if they are not privileged, the judge under the IRPA scheme has the duty to prevent disclosure to the public and to the named person of this information if it would be injurious to national security or the safety of the sources. The information will thus generally remain within the confines of the closed circle formed by the designated judge, the special advocates — who, it bears repeating, are security-cleared lawyers — and the Minister’s lawyers.\n\nAgainst this background, I come to the question: Are the identities of CSIS human sources and information that might reveal their identity protected by common law privilege?", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-7", + "id": "scc-13643-35", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 85", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond. ... 103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi. ... (6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparat devant un arbitre aux mêmes fins au moins une fois: a)dans la période de sept jours qui suit l'expiration de ce delai; b)tous les trente jours après l'examen effectué pendant cette période.", - "current_to": "2004-01-09", + "text": "It is argued that police informer privilege attaches to CSIS human sources. I agree with the Federal Court of Appeal that it does not. Traditional police work involving informers, on the one hand, and the collection of security intelligence and information, on the other, are two different things. Indeed, Parliament created CSIS in recognition of this emerging distinction: Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 (“Charkaoui II”), at paras. 21-22. Courts developed police informer privilege at a time when the police investigated crimes locally and collected evidence mainly for use in criminal trials. By contrast, the intelligence gathering conducted by CSIS takes place on a global scale and is geared towards prospectively preventing risks: K. Roach, “The eroding distinction between intelligence and evidence in terrorism investigations”, in N. McGarrity, A. Lynch and G. Williams, eds., Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (2010), 48. Police have an incentive not to promise confidentiality except where truly necessary, because doing so can make it harder to use an informer as a witness. CSIS, on the other hand, is not so constrained. It is concerned primarily with obtaining security intelligence, rather than finding evidence for use in court. While evidence gathered by the police was traditionally used in criminal trials that provide the accused with significant evidentiary safeguards, the intelligence gathered by CSIS may be used to establish criminal conduct in proceedings that — as is the case here — have relaxed rules of evidence and allow for the admission of hearsay evidence.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-8", + "id": "scc-13643-36", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 4–6", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 85–86", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "(7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution. ... THE CERTIFIED QUESTION\n\nThere are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review. Nature of the Hearing\n\nI think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 at 156 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at 166 (C.A.)). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 at 334 (T.D.), Campbell J. held that in a detention review, \"all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made.\" Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.", - "current_to": "2004-01-09", + "text": "The differences between traditional policing and modern intelligence gathering preclude automatically applying traditional police informer privilege to CSIS human sources.\n\nI have found no persuasive authority for the proposition that police informer privilege applies to CSIS human sources. In R. v. Y. (N.), 2012 ONCA 745, 113 O.R. (3d) 347, cited as authority by Abella and Cromwell JJ., the issue was whether an informer who had worked successively for CSIS and the RCMP was a state agent for purposes of applying the Charter . The court remarked that one distinction between a state agent and a confidential informer is that privilege applies only to the latter (para. 122). The court’s reasons can be read as assuming that privilege would attach to a CSIS informer, but that point was not squarely before the court and was not decided.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-9", + "id": "scc-13643-37", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 7–8", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 87", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous Members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that: ... the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed ... by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 at 159 (T.D.)).\n\nNothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As Adjudicators did under the former Act, the Immigration Division reviews \"the reasons for the continued detention\" [emphasis added]. Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted. The Treatment of Prior Decisions", - "current_to": "2004-01-09", + "text": "Nor, in my view, should this Court create a new privilege for CSIS human sources. This Court has stated that “[t]he law recognizes very few ‘class privileges’” and that “[i]t is likely that in future such ‘class’ privileges will be created, if at all, only by legislative action”: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42. The wisdom of this applies to the proposal that privilege be extended to CSIS human sources: Canada (Attorney General) v. Almalki, 2011 FCA 199, [2012] 2 F.C.R. 594, at paras. 29-30, per Létourneau J.A. If Parliament deems it desirable that CSIS human sources’ identities and related information be privileged, whether to facilitate coordination between police forces and CSIS or to encourage sources to come forward to CSIS (see reasons of Abella and Cromwell JJ.), it can enact the appropriate protections. Finally, the question arises whether judges should have the power to shield the identity of human sources from special advocates on a case-by-case basis where they conclude that public interests in non-disclosure outweigh the benefits of disclosure. This question was not argued by the parties, and I offer no comment on it, other than to note that the IRPA scheme already affords broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person. (2) Should the Special Advocates Be Authorized to Interview and Cross-Examine the Human Sources?", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-10", + "id": "scc-13643-38", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 9–12", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 88–89", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.\n\nDetention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.\n\nCredibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.\n\nThe best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.", - "current_to": "2004-01-09", + "text": "The special advocates ask this Court to rule that they may interview and cross-examine the CSIS human sources who have provided information used against Mr. Harkat.[1] I have concluded that the identity of CSIS human sources is not privileged. However, it does not follow from the absence of a privilege that special advocates have an unlimited ability to interview and cross-examine human sources. As discussed above, the designated judge may admit information provided by these sources as hearsay evidence, if he concludes that the evidence is “reliable and appropriate”: s. 83(1) (h), IRPA . The Minister has no obligation to produce CSIS human sources as witnesses, although the failure to do so may weaken the probative value of his evidence.\n\nThis said, the special advocates may “exercise, with the judge’s authorization, any other powers that are necessary to protect the interests” of the named person: s. 85.2 (c), IRPA . The designated judge has the discretion to allow the special advocates to interview and cross-examine human sources in a closed hearing. This discretion should be exercised as a last resort. The record before us establishes that a generalized practice of calling CSIS human sources before a court, even if only in closed hearings, may have a chilling effect on potential sources and hinder CSIS’s ability to recruit new sources. In most cases, disclosure to the special advocates of the human source files and other relevant information regarding the human sources will suffice to protect the interests of the named person.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-11", + "id": "scc-13643-39", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 13–15", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 90", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way. Burden of Proof\n\nWhen determining who bears the burden of proof at a detention review hearing, it is important to remember that sections 57 and 58 allow persons to be detained for potentially lengthy, if not indefinite, periods of time, without having been charged with, let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 Charter considerations in mind (Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at 225-231 (T.D.)).\n\nSubsection 103(7) of the former Act provided that an adjudicator shall order release if \"satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal.\" Under that provision, Campbell J. held that \"the initial onus of proving continued detention is warranted rests with the proposer of such an order\", i.e. the Minister (Lai at 334). If anything, this holding applies even more strongly to section 58 which provides that \"the Immigration Division shall order the release of the permanent resident or foreign national unless it is satisfied\" that one of the listed conditions is met [emphasis added]. I therefore agree with Gauthier J. that it is the Minister who must establish, on a balance of probabilities, that the respondent is a danger to the public if he wants the detention to continue.", - "current_to": "2004-01-09", + "text": "The case at hand is not one of those rare cases in which it is necessary to give special advocates permission to interview and cross-examine CSIS human sources. The special advocates contend that cross-examination is necessary in order to test the credibility of the human sources, to cross-examine them on Mr. Harkat’s motives for coming to Canada in the mid-1990s, and to undermine the allegation that Mr. Harkat traveled to Afghanistan. In my view, Mr. Harkat and his special advocates have had sufficient opportunity to pursue those objectives, and the designated judge’s weighing of the relevant evidence took into account the fact that it was hearsay. Indeed, the evidence on the record allowed the special advocates to undermine the credibility of one of the human sources and led Noël J. to rely on information originating from this source only when corroborated: see 2010 FC 1241, at footnote 1. Moreover, Mr. Harkat testified with respect to his motives for coming to Canada and denied the allegations that he visited Afghanistan. Noël J. made a strong adverse finding of credibility against Mr. Harkat on these issues: it is highly improbable that cross-examination of the human sources could have bolstered his credibility. There is therefore no need for this Court to authorize the exceptional measure of interviewing and cross-examining human sources. C. Did the Designated Judge Err in Refusing to Exclude the Summaries of Intercepted Conversations?", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-12", + "id": "scc-13643-40", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 16–17", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 91–92", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie cases in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75: ... at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding [sic] the review. MR. IOZZO'S DECISION\n\nThe Minister has attempted to point out a number of inconsistencies in Mr. Iozzo's reasons. For the most part, the Minister is simply arguing that Mr. Iozzo did not properly assess the reliability of the evidence before him. However, as Gauthier J. determined, the Minister has not demonstrated that these factual findings are patently unreasonable.", - "current_to": "2004-01-09", + "text": "Mr. Harkat seeks the exclusion of summaries of intercepted conversations that were tendered as evidence by the ministers, pursuant to s. 24(1) of the Charter . He argues that CSIS prejudiced his ability to know and meet the case against him by destroying the original operational notes and recordings that were the source materials for the summaries. Noël J. found the summaries to be reliable and concluded that the destruction of the operational materials did not prejudice Mr. Harkat. The Federal Court of Appeal disagreed, finding that the destruction of the materials prejudiced Mr. Harkat’s ability to challenge the reliability and accuracy of the summaries. As a remedy, it excluded the summaries of intercepted conversations to which Mr. Harkat was not privy. (1) Did the Destruction of Source Materials Result in a Breach of Section 7 of the Charter ?\n\nThe original CSIS operational materials were destroyed in accordance with CSIS internal policy OPS-217, which required the systematic destruction of operational materials after operatives had completed their final reports and summaries. In Charkaoui II, this Court found that both the Canadian Security Intelligence Service Act , R.S.C. 1985, C-23 (“CSIS Act”), and the right to procedural fairness of the named person required CSIS “to retain all the information in its possession and to disclose it to the ministers and the designated judge”: para. 62.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-13", + "id": "scc-13643-41", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 18", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 93–94", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Nonetheless, the Minister argues that Mr. Iozzo failed to give clear and compelling reasons to show why he departed from the prior decisions to detain the respondent. In his decision, Mr. Iozzo stated: The decision to be made at this review is a decision de novo, where the previous decisions are considered, and given due deference and respect; ultimately, a new decision must be made on the basis of that member's judgment and assessment of the evidence. ... Deference must be shown to previous decisions, but \"error\" cannot be continued for the sake of consistency.10 In analyzing the records of previous reviews, I have pondered the reasons for detention and the reasons for release provided by previous members. For this review to have any significance, however, I have to make an honest decision on my assessment of all the evidence [Emphasis in original]. 10Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.", - "current_to": "2004-01-09", + "text": "As a result of policy OPS-217, the original operational notes and recordings are lost evidence. Where the Minister loses evidence that should have been disclosed, he has a duty to explain what happened to it: R. v. La, [1997] 2 S.C.R. 680, at paras. 18-20. Where the Minister is unable to satisfy the judge that the evidence was not destroyed owing to unacceptable negligence, he has failed to meet his disclosure obligations and there has been a breach of s. 7 of the Charter : ibid., at para. 20. In the present case, the destruction of operational notes pursuant to policy OPS-217 constitutes unacceptable negligence, within the meaning of La. Indeed, no reasonable steps were taken to preserve the evidence: ibid., at para. 21. Quite the contrary. CSIS destroyed the materials in violation of the CSIS Act, and, in so doing, compromised “the very function of judicial review”: Charkaoui II, at para. 62. Consequently, the ministers failed to meet their disclosure obligations towards Mr. Harkat and breached s. 7 of the Charter . (2) What Is the Appropriate Remedy?\n\nThe finding that CSIS operational materials were destroyed through unacceptable negligence does not necessarily mean that the summaries of those materials must be excluded from the evidence. The appropriate remedy for the destruction of materials pursuant to policy OPS-217 must be assessed on a case-by-case basis, and must be tailored to address the prejudicial effect on the named person’s case: Charkaoui II, at para. 46.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-14", + "id": "scc-13643-42", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 19", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 95–97", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "From this statement, it seems apparent that Mr. Iozzo paid appropriate regard to the prior decisions. Mr. Iozzo's disagreement and the reasons for it are clearly implicit in his decision. On page 11 of his reasons, Mr. Iozzo points out that all of the previous members had recognized that there were credibility problems associated with the various witness statements and that even Minister's counsel had conceded before him that there were contradictions and inconsistencies in those statements. He then cites numerous examples of such inconsistencies. He concludes by stating at pages 14-15 that \"at the end of the day, apart [sic] the Court documents entered into evidence and the undisputed facts, I was left with a whole box of material containing statements by untrustworthy people contradicting one another's statements and contradicting their own statements.\"", - "current_to": "2004-01-09", + "text": "The summaries of materials destroyed pursuant to policy OPS-217 should only be excluded under s. 24(1) of the Charter if their admission “would result in an unfair trial or would otherwise undermine the integrity of the justice system”: R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 3. “[T]he appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the remediation of prejudice to the accused” and the “safeguarding of the integrity of the justice system”: ibid., at para. 26. Since the exclusion of evidence impedes the truth-seeking function of trials, it should only be resorted to if lesser remedies are inadequate to achieve those two purposes: ibid., at para. 24.\n\nThus, the question here is whether the exclusion of the summaries is necessary to remedy the prejudice to Mr. Harkat’s ability to know and meet the case against him, or to safeguard the integrity of the justice system. In my view, it is not.\n\nThe disclosure of the summaries in an abridged version to Mr. Harkat and in an unredacted form to his special advocates was sufficient to prevent significant prejudice to Mr. Harkat’s ability to know and meet the case against him. It is true, as the Federal Court of Appeal noted, that the destruction of the originals makes it impossible to ascertain with complete certainty whether the summaries contain errors or inaccuracies: para. 133. “An assessment of prejudice is problematic where, as in this case, the relevant information has been irretrievably lost”: R. v. Bero (2000), 137 O.A.C. 336, at para. 49. However, the impact of the loss of evidence on trial fairness must be considered “in the context of the rest of the evidence and the position taken by the defence”: R. v. J.G.B. (2001), 139 O.A.C. 341, at para. 38.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-15", + "id": "scc-13643-43", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 20", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 98–99", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Where Mr. Iozzo differed from the decisions of the Members who had ordered the respondent's continued detention was his unwillingness to accept the proposition that \"non-credible statements can become credible by their number, or that a lie many times told by different people becomes the truth\" (page 15). He therefore implicitly rejected the \"common thread\" approach on which the previous decisions were based (see M.C.I. v. Thanabalasingham (18 March 2002), Toronto 0003-A1-02365 at 9 and 19 (I.R.B. (Adj. Div.)), Ms. Gratton; M.C.I. v. Thanabalasingham (28 May 2002), Milton 0003-A1-02365 at 3 (I.R.B. (Adj. Div.)), Ms. Simmie (Adjudication File Summary of Detention Review Hearing); and M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 92 (I.R.B. (Imm. Div.)), Mr. Murrant). Having regard to the need to come to a fresh decision at each detention review, albeit one that pays proper attention to the previous decisions, this conclusion is one which was open to Mr. Iozzo and which Gauthier J. was correct not to disturb.", - "current_to": "2004-01-09", + "text": "The destruction of the original operational materials did not significantly prejudice Mr. Harkat’s ability to know and meet the case against him. As Noël J. noted, reliable summaries of the original materials pertaining to the intercepted conversations were disclosed to Mr. Harkat. Mr. Harkat’s position was to deny the very occurrence of most of those conversations rather than to challenge their specifics. And the content of the summaries is corroborated by the overall narrative of Mr. Harkat’s life which emerged during the proceedings: 2010 FC 1243, at paras. 66-67.\n\nMoreover, I am satisfied that the admission of the summaries does not undermine the integrity of the justice system. While the destruction of CSIS operational materials was a serious breach of the duty to preserve evidence, it was not carried out for the purpose of deliberately defeating the Minister’s obligation to disclose. It must also be recognized that, prior to this Court’s holding in Charkaoui II, the existence and scope of CSIS’s legal obligation to preserve operational materials had not been definitively settled by the courts. It cannot be said that CSIS’s application of policy OPS-217 evidenced a systematic disregard for the law. Since the admission of the summaries would neither deny procedural fairness to Mr. Harkat nor undermine the integrity of the justice system, I conclude that Noël J. made no reviewable errors in refusing to exclude the impugned summaries of intercepted conversations. D. Did the Ministers Breach Their Duties of Candour and Utmost Good Faith?", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-16", + "id": "scc-13643-44", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 21–22", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 100–102", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The Minister also argues that Mr. Iozzo erred in law in his treatment of the respondent's previous convictions. The Minister says that Mr. Iozzo incorrectly held that previous convictions alone could not support a finding that a detainee is a danger to the public. I agree with Gauthier J. that: Mr. Iozzo could have described in more detail his reasoning, but his failure to do so does not constitute a reviewable error when it is clear from his decision itself that he had considered all the evidence relating to the context of those convictions and, nevertheless, declared himself not satisfied that they alone could support a detention order (paragraph 124). Mr. Iozzo did not hold that previous convictions alone could never support a danger finding; rather, he held that these particular convictions could not do so in the circumstances of this case. I agree with Gauthier J. that such a finding was reasonably open to him.\n\nFinally, the Minister argues that Mr. Iozzo erred in approving proposed guarantors because he did not consider whether they were \"able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed\" as required by paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations and because the proposed guarantors would not be able to assert sufficient control over the respondent.", - "current_to": "2004-01-09", + "text": "The special advocates argue that duties of candour and utmost good faith required the ministers to make extensive inquiries of foreign intelligence agencies for information and evidence regarding several alleged terrorists with whom they claim that Mr. Harkat had associated. They contend that the ministers failed to discharge these duties. The courts below found that the ministers made reasonable efforts to obtain information sought by the special advocates.\n\nIn Ruby, this Court recognized that duties of candour and utmost good faith apply when a party relies upon evidence in ex parte proceedings: “The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld” (para. 27). The Federal Court added, in Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163, at para. 500, that “[t]he duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case.”\n\nThe duties of candour and utmost good faith require an ongoing effort to update, throughout the proceedings, the information and evidence regarding the named person: see, for example, Almrei, 2009 FC 1263, at para. 500. The special advocates argue that, pursuant to these duties, the ministers must send detailed requests to foreign intelligence agencies. In their view, those requests must explain the context of security certificate hearings, the purposes for which the information will be used, and the consequences for the named person if the information is not provided.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-17", + "id": "scc-13643-45", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 23–24", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 103–104", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Although Mr. Iozzo did not expressly refer to paragraph 47(2)(b), he did consider whether the proposed guarantors would be adequately able to control the respondent if he were released. He agreed with Mr. Tumir and Mr. Murrant who had concluded that substantial bonds would be sufficient to address this concern. Mr. Tumir (M.C.I. v. Thanabalasingham (5 November 2002), Milton 0003-A1-02365 at 25-26 (I.R.B. (Imm. Div.))) and Mr. Murrant (M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 90-91 (I.R.B. (Imm. Div.))) had already specifically addressed and rejected this concern. It was not unreasonable for Mr. Iozzo to rely on their findings on this point. CONCLUSION\n\nThe reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions.", - "current_to": "2004-01-09", + "text": "The position advocated by the special advocates is tantamount to requiring the ministers to conduct an investigation under the instructions of the special advocates. The ministers have no general obligation to provide disclosure of evidence or information that is beyond their control: R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 21; R. v. Stinchcombe, [1995] 1 S.C.R. 754, at para. 2. With respect to evidence and information held by foreign intelligence agencies, the ministers’ duty is to make reasonable efforts to obtain updates and provide disclosure. What constitutes reasonable efforts will turn on the facts of each case. In the present appeal, I agree with Noël J. that reasonable efforts were made by the ministers: see 2010 FC 1243, Annex “A”, at paras. 6-7. The ministers sent letters of request to the relevant foreign intelligence agencies. The outcome of those requests may not have been satisfactory to the special advocates, but this fact alone is not enough to conclude that the efforts made by the ministers were insufficient. E. Were the Proceedings Against Mr. Harkat Fair?\n\nThe special advocates ask this Court to find that, even if the statutory scheme is constitutional in the abstract, Mr. Harkat was not afforded a fair process in the case at hand and should be granted a stay of proceedings. They contend that they were not given sufficient opportunities to test the reliability and accuracy of the summaries of intercepted conversations and the information provided by foreign intelligence agencies, nor to test the credibility of the human sources.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-31607-18", + "id": "scc-13643-46", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 25", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 105–107", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention. \"Marshall Rothstein\" J.A. \"I agree A.J. Stone J.A.\" \"I agree K. Sharlow J.A.\" FEDERAL COURT OF APPEAL", - "current_to": "2004-01-09", + "text": "I would not grant a stay of proceedings. As discussed above, Noël J. did not err in admitting the summaries of intercepted conversations or in refusing to allow the cross-examination of human sources. The special advocates also fail to demonstrate any reviewable errors in his conclusions that the foreign intelligence he admitted was reliable and appropriate, or in the probative value that he accorded to that evidence.\n\nA stay of proceedings is a remedy of last resort, to be granted only in the clearest of cases: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 82; La, at para. 23; Charkaoui II, at para. 76; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. The special advocates have failed to demonstrate that Mr. Harkat’s security certificate proceedings were an unfair process or that state conduct undermined the integrity of the judicial system. Mr. Harkat is not entitled to a stay of proceedings. F. Did the Designated Judge Err in Concluding That the Security Certificate Was Reasonable?\n\nHaving concluded that Mr. Harkat received a fair process, the only remaining issue is whether Noël J. committed any reviewable errors in concluding that the security certificate referred to him by the ministers was reasonable. Mr. Harkat raises a single argument: that the trial judge erred in his weighing of the evidence.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-1", + "id": "scc-13643-47", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 1–3", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 108–109", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "This appeal is from the judgment of Crampton C.J. of the Federal Court (2016 FC 1199), granting five consolidated applications by the Minister for judicial review, setting aside the five corresponding orders issued by members of the Immigration Division of the Immigration and Refugee Board releasing the appellant from immigration detention on conditions, and remitting the question of release or continued detention to Member Cook of the ID, who made the most recent of the five orders.\n\nIn both their written and their oral submissions the parties focused on the application judge’s decision with respect to the order of Member Cook, which superseded the four earlier orders. It is appropriate to do the same in these reasons.\n\nHowever, my doing so leads me reluctantly but inescapably to the conclusion that this Court lacks jurisdiction to decide the appeal. The question as certified by the application judge, on which this Court’s jurisdiction depends, does not in my respectful view meet the well-established criteria for certification, and reformulation of the question would not render it compliant. I say “reluctantly” because the appeal was well and fully argued on the merits, and because underlying the certified question may well be a serious legal question of general importance that, as the application judge suggested, calls for further judicial consideration. But the question as framed is not dispositive of the appeal as it was argued, so that deciding the appeal would take the Court outside the role that Parliament envisaged for it in immigration matters. I see no alternative therefore but to dismiss the appeal.", - "current_to": "2018-01-19", + "text": "The designated judge’s weighing of the factual evidence on the record is entitled to appellate deference and should only be interfered with if he committed a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Mr. Harkat identifies only one specific instance where the judge, in his view, committed a palpable and overriding error. He contends that Noël J. erred in finding that an individual named Ibn Khattab facilitated terrorist activities, since a judge in another security certificate case found that Ibn Khattab could not be characterized as engaging in or facilitating terrorism: see Almrei, 2009 FC 1263. I cannot accept that submission. In the Almrei case, the designated judge was careful to qualify his findings on Ibn Khattab as limited to the facts and the record before him. Indeed, he stated that “[t]he weight of the evidence before me in this case favours a finding that he [i.e. Ibn Khattab] was not a terrorist in his own right or a terrorist patron but I accept that there are reasonable grounds to believe the contrary”: para. 457 (emphasis added).\n\nNoël J. was entitled to make his own assessment of whether Ibn Khattab was involved in terrorist activities, based on evidence that he found to be reliable and appropriate. I would not interfere with his assessment. Nor do I find any palpable and overriding error in Noël J.’s weighing of the evidence or in his assessment of Mr. Harkat’s credibility, both of which in his view provided reasonable grounds to establish Mr. Harkat’s inadmissibility. IV. Conclusion", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-2", + "id": "scc-13643-48", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 4–6", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 110–111", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "In explaining why I reach this conclusion, I will first briefly outline the scheme of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as it relates to removal orders, detention and release. Next, I will set out the relevant background, addressing the circumstances relating to the appellant’s detention, Member Cook’s decision, and the decision on judicial review. I will then consider in more detail the requirements that a certified question must meet and how in my view those requirements are not met in this case. I appreciate that all of this is a rather lengthy prelude to a decision that ultimately does not address the merits of the appeal, but the context may nonetheless prove helpful in grounding the disposition that I propose.\n\nThe Immigration and Refugee Protection Act establishes a framework for immigration to Canada and the grant of refugee protection. The objectives of the IRPA are set out in subsection 3(1). By paragraphs 3(1)(h) and 3(1)(i), they include the protection of public health and safety and the security of Canadian society and the promotion of international justice and security by fostering respect for human rights and denying access to Canadian territory to persons who are criminals or security risks.\n\nBy sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, violation of human or international rights, serious criminality, criminality or organized criminality. A removal order is enforceable if it has come into force and is not stayed (subsection 48(1)). If a removal order is enforceable, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (subsection 48(2)).", - "current_to": "2018-01-19", + "text": "The IRPA scheme does not provide a perfect process. However, it meets the requirements of procedural fairness that are guaranteed by s. 7 of the Charter . The discretion granted to designated judges is the crucial ingredient that allows the proceedings to remain fair from beginning to end. Designated judges must ensure that the named person receives sufficient disclosure of the information and evidence to be able to give meaningful instructions to his public counsel and meaningful guidance to his special advocates, must refuse to admit evidence that is unreliable or whose probative value is outweighed by its prejudicial effects, and must take a liberal approach towards authorizing communications by the special advocates. And in cases where the inherent limitations of the IRPA scheme create procedural unfairness, designated judges must exercise their discretion under s. 24(1) of the Charter to grant an appropriate remedy.\n\nIn the present case, Mr. Harkat benefited from a fair process. The designated judge did not err in refusing to exclude summaries of intercepted conversations and to allow the cross-examination of human sources. In addition, he did not commit a palpable and overriding error in concluding that the record provided reasonable grounds to find that Mr. Harkat was inadmissible on security grounds. Consequently, I would allow the appeal in part and dismiss the cross-appeal. Noël J.’s conclusion that the security certificate was reasonable is reinstated.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-3", + "id": "scc-13643-49", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 7–9", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 112–113", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The Act authorizes the arrest and detention of a permanent resident or foreign national who there are reasonable grounds to believe is inadmissible and a danger to the public or unlikely to appear for removal from Canada or at a proceeding that could lead to removal (subsection 55(1)).\n\nWithin 48 hours of arrest, the Immigration Division of the Immigration and Refugee Board is required to review the reasons for detention (subsection 57(1)). Following this initial review, the ID must conduct additional reviews within seven days and at least once every 30 days thereafter (subsection 57(2)).\n\nIn a detention review, the ID must assess whether there are grounds for detention: whether, among other things, the detainee is a danger to the public, a flight risk, or a foreign national whose identity has not been established. Unless it is satisfied that one or more of the specified grounds is made out, it must order the detainee’s release (subsection 58(1)). By paragraph 245(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227, the assessment whether there is a flight risk includes consideration of the detainee’s voluntary compliance with any previous departure order and, therefore, compliance with subsection 48(1) of the IRPA, which as set out above requires a foreign national to leave Canada immediately as soon as a removal order becomes enforceable.", - "current_to": "2018-01-19", + "text": "At the closed hearing, the ministers requested that they be allowed to review these reasons before they are released to Mr. Harkat and to the public. I would not allow this. The information contained within these reasons has already been publicly disclosed in the reasons of the courts below; it poses no risk to national security. The following are the reasons delivered by\n\nAbella AND Cromwell JJ. (dissenting in part on the appeal) — An individual who comes forward with information about a potential terrorist threat, often risks his or her life in doing so if his or her identity is disclosed. Offering the possibility of anonymity only if a court subsequently agrees to protect the source’s identity, requires the source to choose between risk of personal harm if his identity is not protected, or risk of harm to the public if the information is not disclosed. That is the inevitable result of a case-by-case approach as suggested by the majority. In our view, with respect, this choice is not only an unacceptable one from the point of view of the public’s safety, it is unnecessary.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-4", + "id": "scc-13643-50", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 10–12", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 114–115", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "By subsection 247(1) of the Regulations, in assessing whether the identity ground is established, the ID must consider among other things the detainee’s cooperation, including whether the detainee provided or assisted the Department of Citizenship and Immigration in obtaining evidence of identity, or provided his or her date and place of birth and parents’ names. Subsection 16(3) of the Act authorizes an immigration officer to require or obtain from a detainee any evidence that may be used to establish identity.\n\nIf any of the specified grounds of detention are established, the ID is obliged to consider the factors set out in section 248 of the Regulations before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. These factors, which originated in the decision in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at p. 231, 85 F.T.R. 99 at para. 31, were incorporated into the Regulations in 2002.\n\nIf the ID orders release, it may impose any conditions that it considers necessary (IRPA, subsection 58(3)). The person concerned may apply to vary these conditions on the basis that they are no longer necessary to ensure compliance with the Act (Tursunbayev v. Canada (Public Safety and Emergency Preparedness), 2014 FC 5, 21 Imm. L.R. (4th) 302 at para. 31).", - "current_to": "2018-01-19", + "text": "Like Noël J., in our view, CSIS informants who provide national security information based on a promise of confidentiality are entitled to the assurance that the confidentiality will be protected. This can only be guaranteed by a class privilege, as is done in criminal law cases. A case-by-case approach results in a source not knowing the likelihood the promise will be kept until a judge engages in a retrospective assessment as to whether the promise will be kept. This is hardly conducive to encouraging informants to risk their lives by coming forward to offer highly sensitive information in terrorism cases. While we otherwise agree with the reasons of the Chief Justice, therefore, we do not share her view of what protection national security sources are entitled to. Analysis\n\nInformer privilege has been judicially recognized for more than two centuries and has a dual purpose: protection of a channel of information and the safety of those supplying it (Stanley Schiff, Evidence in the Litigation Process (4th ed. 1993), at pp. 1550-56). As Professor Schiff explains: The rationale of the privilege makes it available in all manner of proceedings, including those before commissions of enquiry and administrative tribunals. The rationale also makes it available if the informant spoke to a public agency other than the police, so long as the agency has law enforcement authority. . . . By the same token, the privilege is not available if the public official to whom the informer spoke has no law enforcement authority . . . . [Emphasis added; pp. 1551-52.]", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-5", + "id": "scc-13643-51", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 13–14", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 116–117", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellant came to Canada in 1994, and was granted refugee status in 1996. He asserts that he is Jacob Damiany Lunyamila, a citizen of Rwanda, born there in September 1976. However, his identity has not been established. Among other things, he has no Rwandan identity documents, and the file associated with his refugee claim was destroyed years ago in accordance with standard Immigration and Refugee Board document retention policies.\n\nIn the period from January 1999 to June 2013, Mr. Lunyamila was charged with 94 criminal offences and convicted of 54. It appears that a number of the convictions were connected to alcohol addiction and mental health issues. In July 2012, Mr. Lunyamila was found inadmissible for criminality under paragraph 36(2)(a) of the IRPA. A deportation order was issued against him in August 2012. After a conviction for sexual assault, he was also found inadmissible for serious criminality under paragraph 36(1)(a) of the IRPA. In May 2014, a danger opinion was issued under paragraph 115(2)(a) of the IRPA, declaring that he was a danger to the public and that the risk to the Canadian public outweighed any risk he would face on return to Rwanda and any humanitarian and compassionate considerations. Leave to seek judicial review was denied.", - "current_to": "2018-01-19", + "text": "It has therefore been applied in settings other than criminal prosecutions, including commissions of inquiry: Bisaillon v. Keable, [1983] 2 S.C.R. 60. Numerous decisions of the Federal Court have applied informer privilege to sources who provided confidential information to a parole board (see Rice v. National Parole Board (1985), 16 Admin. L.R. 157 (T.D.), at pp. 167-68; Wilson v. National Parole Board (1985), 10 Admin. L.R. 171 (T.D.), at p. 188; Cadieux v. Director of Mountain Institution, [1985] 1 F.C. 378 (T.D.), at pp. 397-98). It has also been applied to an informer of a securities regulator: A. v. Drapeau, 2012 NBCA 73, 393 N.B.R. (2d) 76.\n\nWigmore refers to the informer privilege as one relating to the identity of persons supplying the government with information concerning the commission of crimes. . . . . . . . . . the principle is a large and flexible one. It applies wherever the situation is one where without this encouragement the citizens who have special information of a violation of law might be deterred otherwise from voluntarily reporting it to the appropriate official. [Emphasis deleted.] (John Henry Wigmore, Evidence in Trials at Common Law (McNaughton rev. 1961), vol. 8, at pp. 761 and 767-68)", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-6", + "id": "scc-13643-52", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 15–17", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 118–119", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Mr. Lunyamila was arrested and detained under section 55 of the IRPA in June 2013. His detention was initially continued on the grounds that he was both a flight risk and a danger to the public. On the second 30 day review, he was ordered released on conditions. The conditions included a requirement that he live at a specified addiction rehabilitation facility, complete its three month program and abide by its rules and regulations. However, he left the facility after two days and was rearrested. He has remained in detention since September 2013.\n\nUntil January 2016, successive 30 day reviews resulted in orders for continued detention, at first on flight risk and danger grounds, and then on identity grounds as well. However, beginning in January 2016 ID members issued a series of orders for Mr. Lunyamila’s release. Each of these orders was stayed, and two of them – those issued in January and February 2016 – were set aside by the Federal Court on judicial review (2016 FC 289). A further five release orders, including the order made by Member Cook, were the subject of the consolidated applications that led to this appeal.\n\nFollowing the issuance of the danger opinion in May 2014, the CBSA took steps to deport Mr. Lunyamila to Rwanda. Since Mr. Lunyamila did not have a Rwandan passport or other travel document, the Canada Border Services Agency contacted the Rwandan High Commission to ascertain the requirements for him to obtain one. The CBSA was informed that the requirements included providing certified copies of Rwandan identity documents and a statutory declaration affirming a willingness to return to Rwanda.", - "current_to": "2018-01-19", + "text": "This Court has repeatedly held that unlike Crown privilege or privileges based on Wigmore’s four-part test, the police informer privilege does not permit a balancing of the benefits of protecting the privileged information against countervailing benefits: Bisaillon, at pp. 93-98. This recognizes that the danger to the safety of the informer and to the intelligence-gathering process is considered to be too great to permit the consideration of countervailing factors: R. v. Leipert, [1997] 1 S.C.R. 281, at para. 12; Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253, at paras. 19-22. In Bisaillon, this Court stated: This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers’ identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice. [Emphasis added; pp. 97-98.]\n\nIn R. v. Basi, [2009] 3 S.C.R. 389, at para. 44, this Court went so far as to conclude that allowing counsel to participate in an in camera hearing involving a police informant was impermissible, even if they undertook not to disclose any privileged information: No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-7", + "id": "scc-13643-53", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 18–21", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Lunyamila had stated that he did not have the required identity documents. Despite ten separate requests by CBSA officers – in June, July, November and December 2014, and February, May, July, August, November and December 2015 – he also refused to sign the required statutory declaration. In response to several of these requests, he stated, in effect, that he would never sign and would never cooperate with his deportation.\n\nIn November 2013 and in 2014, the CBSA received information suggesting that Mr. Lunyamila was actually a person with a different name and birth date who was a citizen of Tanzania. However, the CBSA’s investigation of this information led to a different individual, and the possibility that Mr. Lunyamila was Tanzanian was not pursued further at that time.\n\nThe CBSA recommenced its investigation in February 2015 when it received further information linking Mr. Lunyamila to Tanzania. It explored retaining a private investigator, made inquiries of the Tanzanian police, and arranged for a linguistic analysis, which was conducted in May 2016. The analysis concluded that it was “very likely” that Mr. Lunyamila’s linguistic background was Tanzanian, and “very unlikely” that it was Rwandan. The CBSA also sent fingerprints for analysis by Tanzanian authorities, and arranged an interview of Mr. Lunyamila by Tanzanian consular officials in September 2016.\n\nMr. Lunyamila has cooperated to some degree with this investigation, including by participating in the linguistic analysis, but he has also provided contradictory and nonsensical information in response to inquiries about his connection to Tanzania.", - "current_to": "2018-01-19", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 120–121", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", + "division": "", + "text": "The privilege for informers in the context of state officials investigating matters of national security is not a “new” privilege, but a well-established one. The Ontario Court of Appeal has recognized a common law CSIS source privilege: R. v. Y. (N.), 2012 ONCA 745, 113 O.R. (3d) 347. This case involved the transfer of Shaikh, an informant, from CSIS to the RCMP. One issue before the court was whether the informant had at some point become a state agent for the purposes of entrapment and abuse of process analyses. The court accepted that Shaikh had informant status while working with CSIS: see paras. 12 and 120. The court’s conclusion that Shaikh was not a state agent was premised in part on the fact that he had not intended to waive the confidentiality protections associated with his informant status: paras. 123-25. The court defined a “confidential informant” as a “voluntary source of information to police or security authorities”: para. 122 (emphasis added).\n\nThe common law’s protection of informer privilege is based on the common sense recognition that engaging in a case-by-case balancing of interests would frustrate the rationale of informer privilege by discouraging the cooperation of informants. As the U.S. Supreme Court explained in a related context, leaving disclosure to individual judges would cause national security sources to “close up like a clam”: Central Intelligence Agency v. Sims, 471 U.S. 159 (1985), at p. 175.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-8", + "id": "scc-13643-54", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 22–24", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 122", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "In September 2016, Member Cook made an order for Mr. Lunyamila’s release from detention, subject to conditions. Although the member was satisfied that all three grounds for continued detention asserted by the Minister – danger, flight risk and identity – were made out, he found that the risks could be sufficiently mitigated by the conditions that he imposed.\n\nIn concluding that Mr. Lunyamila remained “very much a flight risk”, and that it was very unlikely that he would appear voluntarily for removal if released, the member observed that Mr. Lunyamila had done everything in his power to prevent removal to Rwanda, including refusing to sign the declaration required for a Rwandan-issued travel document. Mr. Lunyamila seemed to have figured out, the member stated, that without his cooperation in signing the declaration the CBSA could not remove him.\n\nWith respect to identity, the member stated that “the Minister was making reasonable efforts to establish [Mr. Lunyamila’s] identity.” He noted that the Minister was “undertaking a legitimate investigation […] that [was] capable of uncovering significant evidence,” and stated that it would be improper for him to speculate on what the investigation might uncover. He found the Minister’s efforts to confirm whether Mr. Lunyamila was Tanzanian, while “not perfect,” were reasonable.", - "current_to": "2018-01-19", + "text": "This Court recognized the breadth of the privilege in Solicitor General of Canada v. Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario, [1981] 2 S.C.R. 494. The issue was whether RCMP officers could be compelled to disclose to the Commission the identities of individuals who, based on an assurance of confidentiality, gave information to police officials. The Court concluded that the privilege prevented disclosure. The Court held that the immunity from disclosure is “general in scope”, applying not only in criminal proceedings but also in civil proceedings, before commissions of inquiry and in “forensic investigations” generally (pp. 535-36). Writing for the majority, Martland J. emphasized that the rationale which supports the privilege applies with even more cogency in the national security context: A large number of the instances in which, in the present case, it was sought to obtain from the police the names of their informants concerned police investigation into potential violence against officers of the state, including heads of state. These investigations were admittedly proper police functions. The rule of law which protects against the disclosure of informants in the police investigation of crime has even greater justification in relation to the protection of national security against violence and terrorism. [Emphasis added; p. 537.]", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-9", + "id": "scc-13643-55", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 25–26", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 123", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Having concluded that the three grounds for continued detention were established, Member Cook then turned to the factors set out in section 248 of the Regulations. He found that the first factor, the grounds for detention, weighed in favour of continuing detention. Mr. Lunyamila had been detained because he was a danger to the public, he was a flight risk, and his identity could not be established. The member stated that he had given this factor significant weight, since the danger factor alone was justification for a lengthy detention.\n\nThe member analyzed the second and third factors – the length of time in detention and whether the length of time that detention is likely to continue can be ascertained – together. He found that detention for three years amounted to lengthy detention, and that the length of Mr. Lunyamila’s further detention could not reasonably be anticipated. He concluded that these factors favoured release.", - "current_to": "2018-01-19", + "text": "Before CSIS was created as an independent agency, the intelligence function it now carries out was performed by the RCMP Security Service: see Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (the ���McDonald Commission”), First Report, Security and Information (1979), and Second Report, Freedom and Security under the Law, vols. 1 and 2 (1981). The McDonald Commission, which led to the creation of an independent intelligence agency in Canada, was of the view that informer privilege applied to RCMP officers performing intelligence work: see Second Report, vol. 2, at pp. 1162-63. It explained the importance of preserving informant confidentiality as follows: Security and intelligence activities cannot be carried out effectively without the use of informants. Informants are the main source of information for security and intelligence agencies. Whether the informants are paid or voluntary they invariably provide the information on the basis that their identity will be kept secret and that every effort will be made to ensure that it remains so. Their reasons for wanting their identity to remain secret are myriad and include fear of physical retaliation, harassment or ostracism. Any uncertainty about the ability of agencies to keep sources confidential will result in a “drying up” of such sources. (First Report, at p. 42)", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-10", + "id": "scc-13643-56", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 27–28", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 124–125", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Member Cook noted that the reason for both the lengthy detention and the inability to ascertain the duration of continued detention was the same: the Minister did not have a valid travel document that would permit Mr. Lunyamila’s removal. His case was now “at a stalemate”: the Minister required Mr. Lunyamila’s cooperation to have any prospect of obtaining a Rwandan travel document, but he had refused to cooperate and had stated that he would never cooperate. Although the member acknowledged that Mr. Lunyamila’s cooperation in signing a declaration could lead to a valid travel document, he also noted that cooperation would not guarantee removal because Mr. Lunyamila also lacked the identity documents that Rwanda appeared to require. The Minister was unable to state whether Rwandan authorities would waive this requirement. As for the potential removal to Tanzania, the member found there was no way to reasonably anticipate whether Mr. Lunyamila was actually Tanzanian and how long a removal to Tanzania might take. There was therefore no timeline for the anticipated conclusion of the immigration process: Mr. Lunyamila’s “detention moving forward [was] indefinite” (2016 FC 1199 at paragraph 102).\n\nThe member determined that responsibility for the lengthy detention and uncertainty as to the length of future detention should be apportioned equally to both parties. He assigned a large portion of responsibility for the delay to Mr. Lunyamila. He stated that Mr. Lunyamila’s consistent refusal to cooperate in signing the declaration had stalled his removal at the travel document acquisition stage since 2014, and suggested that the detention might have already ended had he cooperated.", - "current_to": "2018-01-19", + "text": "The mandate of the RCMP Security Service was set out in a cabinet directive of 1975 as being to “‘discern, monitor, investigate, deter, prevent and counter’ persons engaging in subversive or other activity inimical to national security”: Parliamentary Research Branch, “The Canadian Security Intelligence Service” (2000), Current Issue Review 84-27E, at p. 4. Those functions are now found in s. 12 of the Canadian Security Intelligence Service Act , R.S.C. 1985, c. C-23 , which states that “[t]he Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.”\n\nAs this Court pointed out in Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326 (“Charkaoui II”), “the activities of the RCMP and those of CSIS have in some respects been converging”: para. 26. There is no doubt that informer privilege applied to RCMP Security Service informants. While it is true that the functions of CSIS and the RCMP are distinct, the rationale for the informer privilege applies equally to the work of both. The transfer of functions from the RCMP Security Service to CSIS should have no bearing on whether the privilege continues to exist. The investigatory and monitoring services CSIS performs are those previously carried out by the RCMP. There has been a statutory transfer, but not a functional one.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-11", + "id": "scc-13643-57", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 29–30", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 126", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "However, the member also found that the Minister must share the responsibility. Despite the “stalemate” and knowledge that Mr. Lunyamila was not prepared to sign the declaration, the Minister had not undertaken alternative measures to remove him. The member acknowledged that there might not in fact be any alternatives. He also acknowledged that the Minister was now focused on Tanzania as a possible alternate destination for removal. However, he was critical of the Minister’s delay in pursuing the possibility of Tanzanian identity when information to this effect first came to light in 2013. The member accordingly found that the factor of delay and lack of diligence was neutral and favored neither continued detention nor release.\n\nThe member then turned to the last factor, alternatives to detention. He stated that any alternatives must “on balance […] have a likelihood of mitigating the grounds for detention that have been established.” He expressed his belief that if Mr. Lunyamila agreed to comply with all of the conditions he set out, “the grounds for detention [could] be mitigated to a degree whereby [his] release pending removal can be manageable” (2016 FC 1199 at paragraph 104).", - "current_to": "2018-01-19", + "text": "The erection of an artificial boundary between them could lead to absurd results. A source who began supplying information to the police regarding a suspected terrorist threat and then later provided information to CSIS would be entitled to the privilege with respect to the former but not the latter interaction, even if the same assurances of privilege had been given by both agencies. This is not an abstract problem, given the frequent cooperation between the two agencies.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-12", + "id": "scc-13643-58", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 31–32", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 127", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Member Cook set out a total of nine conditions. Condition 1 was that prior to release Mr. Lunyamila sign the declaration requested by Rwanda. Member Cook rejected the suggestion made by another ID member in an earlier review that this condition would amount to “disguised detention” given Mr. Lunyamila’s past refusals to sign. Member Cook reasoned that because Mr. Lunyamila was a criminal and a danger to the public, this condition and Mr. Lunyamila’s deportation were consistent with the immigration objectives, set out in paragraphs 3(1)(h) and (i) of the IRPA, of protecting public health and safety, maintaining the security of Canadian society, and denying criminals access to Canadian society. The condition was also consistent with the obligation imposed by subsection 48(2) of the Act on Mr. Lunyamila to leave Canada immediately, and the obligation on the CBSA to enforce the removal order as soon as possible. The member described Mr. Lunyamila’s non-cooperation as “completely contrary to what is required by Canadian law” (2016 FC 1199 at paragraph 109).\n\nThe other conditions that Member Cook imposed included cooperation with an interview with Tanzanian officials and with any additional CBSA investigation into his identity, acceptance prior to release in a residential drug and alcohol treatment facility and completion of its program, on completion of that program making efforts to enrol in a community-based violence prevention and anger management program and completing the program once enrolled, mandatory reporting to the CBSA, abstention from alcohol, and compliance with any physician-prescribed treatment program.", - "current_to": "2018-01-19", + "text": "Two recent cases illustrate the way sources are shared in national security investigations: R. v. Ahmad, 2009 CanLII 84776 (Ont. S.C.J.), at paras. 31-34; Y. (N.), at para. 120. Ahmad involved information obtained by CSIS and shared with the RCMP, which led to criminal prosecutions for terrorism offences. Y. (N.) involved the transfer of a human source from CSIS to the RCMP. In Ahmad, Dawson J. made the following observation about the nature of the relationship between CSIS and the RCMP: . . . situations will arise where some sharing of information must occur if each organization is to fulfill its mandate. For example, where CSIS comes into possession of information of a real threat to national security, or learns of serious criminal activity, it must notify the RCMP. As Mr. Brooks indicated at para. 15 of his affidavit, CSIS will normally be engaged in the investigation of threats to the security of Canada before the police would have sufficient evidence to commence an investigation on their own. He also points out in his evidence that intelligence gathering investigations are very open ended and wide ranging, with the focus on looking for trends and relationships to help predict emerging or future threats. Such investigations are not oriented towards prosecution. It is the function of the police to react to any information provided by CSIS and to determine how best to proceed from a police perspective. [para. 34]", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-13", + "id": "scc-13643-59", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 33–36", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 128–129", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "In his decision on judicial review, the application judge accepted the parties’ agreement that the appropriate standard of review was reasonableness. He considered the order made by Member Cook after having concluded that he would set aside as unreasonable the other four orders that were the subject of the consolidated applications. He determined that Member Cook’s order was also unreasonable.\n\nThe application judge framed the fundamental issue raised by the applications as “how to resolve the tension between […] an immigration detainee’s refusal to cooperate with a validly issued order for removal from Canada, and […] the length of detention and uncertainty regarding the duration of future detention that result, in whole or in part, from that refusal” (2016 FC 1199 at paragraph 1).\n\nHe expressed his resolution of this tension as follows at paragraph 2: where such a refusal has the result of impeding any steps that may realistically contribute in a meaningful way to effecting the removal of a detainee who has been designated to be a danger to the public, the tension must be resolved in favour of continued detention. The same is true where it has been determined that a detainee is unlikely to appear for removal from Canada.\n\nThe application judge reasoned that if it were otherwise, a detainee who was a danger or a flight risk could by the refusal to cooperate produce or contribute to producing a “stalemate,” resulting in release and the infliction on the public of the associated risk. This would allow detainees to “take the law into [their] own hands” (2016 FC 1199 at paragraph 4), in a manner that Parliament could not have intended.", - "current_to": "2018-01-19", + "text": "To argue that it is unjust for the ministers to claim privilege over the identity of CSIS human sources while continuing to rely on the information obtained from them, is to forget the significant distinction between whether the privilege exists and whether the information provided by the human source can be used to establish the reasonableness of the certificate. Where the information has been redacted and anonymized so that the identity of the human source cannot be ascertained, there is no reason that it must always be eliminated from consideration by the designated judge. There is an obvious analogy to the well-settled law that permits confidential informant information to be considered, for example, in an information to obtain a search warrant and in a wiretap authorization: R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1456. In these contexts, the law has developed some protections, but under certain conditions it nonetheless allows the confidential source material to be considered without the cross-examination of the source.\n\nNoël J. found that “the recruitment of human sources would be harmed if the guarantees of confidentiality given by the Service were not upheld by this Court”: 2009 FC 204, at para. 28. He set out some possible safeguards and lines of inquiry that could help ensure that anonymous source material is sufficiently reliable that it could fairly be considered as part of the review of the reasonableness of the certificate: paras. 64-67. In addition, if a reviewing judge were of the view that consideration of confidential source material would result in a review hearing that does not meet the Charkaoui II standard, the judge could exclude that information from consideration.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-14", + "id": "scc-13643-60", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 37–38", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 130–131", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "In considering one of the other release orders that was the subject of the consolidated applications, the application judge addressed the suggestion made by the ID member who had granted the order that there was a conflict between two lines of cases in the Federal Court – one holding that indefinite detention cannot be treated as a determinative factor in a detention review and the other, that length of detention should be given substantial weight in the balancing process under section 248. He characterized these cases as consistent to the extent that they all properly saw it as necessary to consider and reasonably weigh all of the section 248 factors. But, he stated (at paragraph 85), “where the detainee is a danger to the public, the scheme of the IRPA and the Regulations contemplates that substantial weight should be given to maintaining the detainee in detention.”\n\nThe application judge went on in his discussion of the Federal Court case law to address a further tension identified by the member – that between cases in which the Court had set aside ID release decisions as unreasonable where the detainee’s non-cooperation was the sole cause of the indefinite nature of the detention, and those in which the Court had found unreasonableness in the failure of the member to consider factors other than the detainee’s non-cooperation. He stated (at paragraph 95) that, in his view, “the scheme of the IRPA and the Regulations […] requires resolving a stalemate that has been produced by the detainee’s failure to fully cooperate with the Minister’s removal efforts, in favour of continued detention.”", - "current_to": "2018-01-19", + "text": "There may also be limited circumstances in which the special advocates could be granted access to the privileged information, namely where it is necessary so that the validity of the claim of privilege can be tested. In a criminal trial, the trial judge can look at privileged information where doing so is necessary to establish that the privilege is properly claimed. In Vancouver Sun and in Basi, at para. 57, it was held that in certain circumstances an amicus curiae may be considered to be part of the “circle of privilege”.\n\nThe special advocates may play a similar role in closed proceedings. While this Court held in Basi that it was impermissible for the accused’s counsel to view privileged information based on the need to preserve the integrity of the solicitor-client relationship, different considerations apply to special advocates. The special advocate is not in a solicitor-client relationship. Furthermore, he or she is subject to heightened security clearance requirements which reduce the risk that disclosure may pose. As a result, if the designated judge believes that submissions by special advocates could assist in determining whether a privilege claim is valid, they may be entitled to view the privileged information. Submissions based on information identifying the human source should be limited to the validity of the privilege claim and not extend to the reliability of the information.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-15", + "id": "scc-13643-61", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 39–40", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 132–133", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The application judge found Member Cook’s decision unreasonable in several respects. First, there was an inconsistency between Member Cook’s conclusion that Mr. Lunyamila’s detention had become indefinite and the member’s own findings as to the prospects of removing Mr. Lunyamila to Rwanda or Tanzania. The member had also recognized that a large portion of the delay was attributable to Mr. Lunyamila’s refusal to cooperate, and that his non-cooperation had, in addition, contributed significantly to the uncertainty of the timing of removal. It was therefore unreasonable for the member to rely on delay and uncertainty to find that the detention had become indefinite, and then to treat these factors as favouring release: this amounted to giving Mr. Lunyamila credit for factors for which he had been largely responsible.\n\nThe application judge also found unreasonable the member’s decision to give a neutral weighting to the fourth section 248 factor, relating to delay and lack of diligence. He accepted that the Minister could have been more diligent in making efforts to remove Mr. Lunyamila to Rwanda, but observed that Mr. Lunyamila’s non-cooperation had substantially undermined those efforts. This factor should therefore, the application judge stated, have weighed strongly in favour of continued detention. The application judge found further unreasonableness in Member Cook’s determination that the Minister should have done more sooner to pursue the possibility of removal to Tanzania.", - "current_to": "2018-01-19", + "text": "Nor do we think the privilege is abrogated by statute. The Federal Court of Appeal was of the view that when Parliament enacted the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), it comprehensively legislated the disclosure obligations of the Minister in the security certificate context such that there was no room for importing common law privileges to qualify the disclosure obligations of the Minister. Since ss. 77(2) and 83(1) (c) to (e) of IRPA specify that the Minister and judge may not disclose information which is injurious to national security or which puts the safety of any person at risk, recognizing a class privilege would mean that disclosure could be withheld in a case where neither of these two factors was present.\n\nWe are unpersuaded that the common law has been ousted by these provisions. In order to abrogate a common law privilege, Parliament must clearly express an intention to do so: see Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574, at para. 26. IRPA makes no reference to informer privilege and, as discussed later in these reasons, does not evince a clear intention to deprive CSIS human sources of its benefit.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-16", + "id": "scc-13643-62", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 41–42", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 134", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "The application judge went on to consider the conditions of release set out by Member Cook. The application judge applauded Member Cook for including the pre-release condition that Mr. Lunyamila sign the declaration required by Rwanda. Permitting Mr. Lunyamila to obtain release while continuing to refuse to cooperate would, the application judge stated (at paragraph 119), be “tantamount to letting him take the law into his own hands, and dictate which laws of Canada he will follow and which ones he will not follow.” However, he agreed with the Minister that the conditions taken together were unreasonable because they did not adequately address Mr. Lunyamila’s violent tendencies and his flight risk. He stated (at paragraph 45) that to be reasonable in the circumstances of Mr. Lunyamila’s case, the conditions would have to “virtually eliminate” the risks that he presented.\n\nHaving concluded that the conditions of release taken as a whole were unreasonable, the application judge set aside Member Cook’s order, along with the other four orders that were subjects of the consolidated applications. Based on Member Cook’s recent familiarity with Mr. Lunyamila’s situation and his understanding of the statutory scheme and many of the relevant legal principles, the application judge remitted the matter back to Member Cook for reconsideration in accordance with his reasons.", - "current_to": "2018-01-19", + "text": "IRPA also fails to distinguish between what disclosure means in the context of ss. 77(2) and 83(1)(c) to (e) and what it means in the context of disclosing privileged information to the special advocates. Section 77(2) of IRPA provides that the Minister must file with the court the information and other evidence on which the security certificate is based. On the other hand, disclosure of information subject to informer privilege raises different considerations. This information will generally not have been provided to the judge under s. 77(2) and so will not form part of the judge’s decision on the reasonableness of the issuance of the security certificate. The only provision of IRPA which would govern such a scenario is s. 85.2, which sets out the powers of a special advocate, and, in particular, s. 85.2(c), which states that a special advocate may “exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national”. The same analysis applies with respect to ss. 37 and 38 of the Canada Evidence Act , R.S.C. 1985, c. C-5 . This Court held in Basi that where a claim of informer privilege falls under s. 37 of the Canada Evidence Act , the usual public interest balancing exercise under s. 37(5) is displaced by the common law privilege: paras. 23-24. Additional protection is therefore provided for national security secrets but without abrogating the underlying common law privileges.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-17", + "id": "scc-13643-63", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 43–44", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 135–136", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Neither party proposed a question for certification under paragraph 74(d) of the IRPA. Both were of the view that the case was grounded in its particular facts and therefore presented no question of general importance. However, the application judge saw the differences of view in the Federal Court’s case law as giving rise to a question of general importance warranting this Court’s consideration. He therefore sought the parties’ comments on a question that he proposed. The parties maintained their position that the proposed question was not suitable for certification, because the appropriate balancing of the factors in section 248 will vary depending on the circumstances of each case. The application judge nonetheless certified the following question (at paragraph 137): Can a person who has been detained for removal from Canada pursuant to a valid removal order and who has been found either to be a danger to the public or unlikely to appear for his removal from Canada, avoid continued detention by (i) refusing to take steps that may realistically contribute in a meaningful way to effecting such removal, and then (ii) relying on the length of his detention to argue that his release from detention is warranted, assuming there has been no significant change in other factors to be considered in the assessment contemplated by s. 248 of the Immigration and Refugee Protection Regulations?\n\nBy paragraph 74(d) of the IRPA, this Court has jurisdiction to hear an appeal from the judgment of the Federal Court on an application for judicial review with respect to any matter under the Act only if, in rendering judgment, the Federal Court “certifies that a serious question of general importance is involved and states the question.”", - "current_to": "2018-01-19", + "text": "The final question relates to whether an exception to the privilege should apply in the security certificate context. Noël J. was of the view that there was a “need to know” exception, analogous to the “innocence at stake” exception to the police informer privilege. This exception means that the privilege can be set aside in cases where maintaining it would undermine the accused’s ability to raise a reasonable doubt. The “need to know” exception would similarly be engaged when abrogating the privilege is necessary to prevent a serious breach of procedural fairness that would impugn the administration of justice. On the facts before him, Noël J. held that the requirements of the “need to know” exception had not been met and therefore denied the special advocates’ request.\n\nIn our view, the “need to know” exception outlined by Noël J. is overly broad: 2009 FC 204, at para. 46. We agree with the ministers that this exception is broader than the “innocence at stake” exception because the latter applies only where there is a risk of an unjust outcome, whereas the “need to know” exception applies where there is an unjust procedure. It also appears to overlook the considerable procedural flexibility that is available to the reviewing judge and the particular role of the special advocate.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-18", + "id": "scc-13643-64", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 45–46", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "para 137", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "As this Court observed in Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at para. 23, this provision “fits within a larger scheme designed to ensure that a claimant’s right to seek the intervention of the courts is not invoked lightly, and that such intervention, when justified, is timely.” Other elements of the scheme include the requirement in section 72 of the IRPA to obtain leave before pursuing an application for judicial review in the Federal Court.\n\nThis Court recently reiterated in Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para. 36, the criteria for certification. The question must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance. This means that the question must have been dealt with by the Federal Court and must arise from the case itself rather than merely from the way in which the Federal Court disposed of the application. An issue that need not be decided cannot ground a properly certified question (Lai v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211 at para. 10). Nor will a question that is in the nature of a reference or whose answer turns on the unique facts of the case be properly certified (Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 485 N.R. 186 at paras. 15, 35).", - "current_to": "2018-01-19", + "text": "But given the intensity of the interests at stake in the security certificate context, we acknowledge that it would be appropriate to recognize a limited exception specifically crafted for the security certificate process which would address only disclosure to the special advocate, not to the subject of the proceedings. Identity should be disclosed only if the reviewing judge is satisfied that other measures, including withdrawing the substance of the informant’s evidence from consideration in support of the certificate, are not sufficient to ensure a just outcome. Noël J. ordered generous disclosure of material to the special advocates concerning the credibility of informers and the information they supplied. He allowed cross-examination of CSIS witnesses on the value, reliability and usefulness of informer information. In some circumstances, he relied on informer information only where it had been corroborated. If these measures are not considered adequate, the reviewing judge also has discretion under s. 83(1) (h) of IRPA to refuse to rely on evidence that he or she does not consider to be reliable and appropriate. Only if resort to these measures would not ensure a just outcome should identity be disclosed.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-19", + "id": "scc-13643-65", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 SCC 37", + "act_short": "Harkat", + "act_name": "Canada (Citizenship and Immigration) v. Harkat", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 47–48", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", + "marginal_note": "paras 138–139", + "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", + "part": "Supreme Court of Canada", "division": "", - "text": "Despite these requirements, this Court has considered that it is not constrained by the precise language of the certified question, and may reformulate the question to capture the real legal issue presented (Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, 398 D.L.R. (4th) 685 at para. 5 per Rennie J.A. (dissenting, but not on this point); Ezokola v. Canada (Citizenship and Immigration), 2011 FCA 224, [2011] 3 F.C.R. 417 at paras. 40-44, reversed without comment on the point, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678). Any reformulated question must, of course, also meet the criteria for a properly certified question.\n\nAt the hearing of the appeal, the Court raised with counsel for both parties concerns about the certified question as framed (reproduced at paragraph 43 above). These included concerns that the question might be in the nature of a “straw person,” in that it would admit of only one reasonable answer. However, the Court also recognized that circumstances like those in this case might give rise to a serious legal issue of general importance, and proposed possible alternative formulations for comment. Counsel were content that the Court try to reformulate the question. The Court decided that it would proceed with the hearing on the merits, leaving the possible reformulation of the certified question to be considered further during the Court’s deliberations.", - "current_to": "2018-01-19", + "text": "Even when disclosure of identity is ordered, there should be no cross-examination of the source by the special advocate. Requiring a human source to testify will have a profound chilling effect on the willingness of other sources to come forward, and will undoubtedly damage the relationship between CSIS and the source compelled to testify. CSIS operatives must be able to provide confident assurances to their sources that their identities will not be revealed, not vague assurances hedged with qualifications. Moreover, the human sources themselves, who are not subject to the necessary security clearance, may learn sensitive material in the closed proceedings which CSIS will then be unable to control.\n\nWe would therefore allow the ministers’ appeal on the informant privilege issue and restore Noël J.’s disposition of this issue.", + "current_to": "2014-05-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2014] 2 SCR 33", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" }, { - "id": "fca-305100-20", + "id": "scc-7899-1", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 49–50", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 1–2", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "With the benefit of further consideration, I find myself unable to conclude that the question as certified meets the criteria for certification, or that the question can be reformulated so as to address its deficiencies. The fundamental problem as I see it is that the question does not arise from the facts of this case as it developed. The question asks, in essence, whether an immigration detainee can avoid continued detention by failing to cooperate with removal. But Member Cook’s order did not permit Mr. Lunyamila to do so. Rather, Member Cook’s order expressly imposed as a pre-release condition the requirement that Mr. Lunyamila do what he has so far refused to do – sign the declaration requested by Rwanda.\n\nCounsel’s arguments before us were directed to the reasonableness of this order, including all of its conditions. Counsel for Mr. Lunyamila argued that the order as a whole struck a careful and factually supported balance, that the application judge showed insufficient deference in finding it unreasonable, and that it should not have been set aside. Counsel for the Minister submitted that the application judge was right to find the order unreasonable, but for reasons unrelated to the pre-release condition – a condition which, as noted above, the application judge said he applauded. In sum, therefore, neither party took issue with the pre-release condition of cooperation.", - "current_to": "2018-01-19", + "text": "This appeal requires us to reconcile Canada’s competing obligations with respect to extradition and refugee protection. Under international treaties and domestic law, Canada has undertaken not to return refugees to face the persecution they fled. This is known as the principle of non-refoulement and it is a cornerstone of refugee protection. Canada also has obligations under treaties and domestic law to extradite persons who are sought by foreign states to face criminal prosecutions or serve sentences. These are important obligations that relate not only to Canada’s engagements with other states, but also to the effectiveness of law enforcement. These two obligations in relation to non-refoulement and extradition may collide, however, when Canada is faced with a request to extradite refugees to a state which they fled to avoid persecution. This case is an example.\n\nThe appellants came to Canada and were given refugee protection; they persuaded the authorities that they had a well-founded fear of persecution in their native Hungary on the basis of their Roma ethnic origin. Years later, Hungary requested Canada to extradite them and the Minister of Justice eventually ordered their surrender for extradition. His decision was upheld on review by the Quebec Court of Appeal: 2009 QCCA 99, 2009 CarswellQue 8504. The appellants contend on appeal to this Court that, because of Canada’s non-refoulement obligations, they may not be extradited back to Hungary so long as they retain their refugee status in Canada. The respondent takes the view that the appellants may be extradited in spite of their refugee status because they are charged in Hungary with a serious non-political crime and have failed to establish any continuing risk of persecution upon their return.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-305100-21", + "id": "scc-7899-2", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 51–52", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 3–4", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "In light of my appreciation of the issue raised by the application judge’s formulation and counsel’s comments, I considered proposing that the certified question be reformulated along the following lines: In a review under section 57 of the Immigration and Refugee Protection Act of the detention of a person against whom a removal order has been made, is the Immigration Division of the Immigration and Refugee Board entitled to rely on the factors set out in paragraphs 248(b) and (c) of the Immigration and Refugee Protection Regulations (“the length of time in detention” and “whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time”) as factors favouring release where the length of time in detention and the length of time that detention is likely to continue are attributable in whole or in part to the failure of the detainee to cooperate in his or her removal from Canada?\n\nHowever, given the terms of Member Cook’s order and the positions of the parties, it would not be necessary to decide this question either in order to decide the appeal. The reformulation could also be regarded as deficient on the basis that it is a question whose answer would turn on the unique facts of each case – for example, on the nature and extent of the non-cooperation – or that it would transform this appeal into a reference. I therefore came to the view that reformulation would not be appropriate.", - "current_to": "2018-01-19", + "text": "The resolution of the appeal requires an interpretation of the Extradition Act , S.C. 1999, c. 18 (“EA ”), and the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), that reconciles the competing obligations in relation to extradition and non-refoulement. I agree with the respondent that, under certain conditions, the appelants may be extradited to their country of origin even though their refugee status under Canadian law has not formally ceased or been revoked. However, my view is that the Minister of Justice (“Minister”) did not apply the correct legal principles when he decided to surrender the appellants for extradition. He imposed on them the burden of showing that they would suffer persecution if extradited and by doing so, gave insufficient weight to the appellants’ refugee status and to Canada’s non-refoulement obligations. I would therefore allow the appeal and remit the matter to the Minister of Justice for reconsideration according to law. II. Facts and Proceedings\n\nOn arriving in Canada in 2001, the appellants, who are a couple, applied for refugee status for themselves and their children, alleging that acts of violence had been committed against them in their country of origin, Hungary. Their application was based on three incidents between 1997 and 2001 in which the male appellant, together on one occasion with the female appellant, was attacked by Hungarian citizens because of their Gypsy ethnic origin. The appellants and their children were granted refugee status and became permanent residents.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-305100-22", + "id": "scc-7899-3", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 53–54", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 5–6", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "For these reasons, I conclude that the certified question is not sufficient to give this Court jurisdiction to decide the appeal, which must therefore be dismissed. I do not see “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an award of costs.\n\nI would dismiss the appeal without costs. “J.B. Laskin” J.A. “I agree. David Stratas J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2018-01-19", + "text": "Some two years later, Hungary issued an international arrest warrant in respect of a charge of fraud that had been laid against the appellants. The Hungarian authorities allege that in early November 2000, the couple sold the right of lease for premises in Budapest for approximately C$2,700, despite the fact that they did not possess the right to lease the flat.\n\nThe Minister sought an order from the Superior Court of Quebec for the appellants’ committal on the Canadian offence of fraud contrary to s. 380(1) of the Criminal Code , R.S.C. 1985, c. C-46 , which corresponds to the conduct alleged against them in Hungary. The committal order was granted and has not been appealed.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-1", + "id": "scc-7899-4", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 1–3", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 7", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Enforcement of removal orders by the Canada Border Services Agency (CBSA) is an everyday occurrence in this country. In most cases, removal proceeds in an expeditious manner. But sometimes it does not. The person to be removed may not report. The receiving country may delay or refuse to issue the necessary travel documents. Sometimes the political situation in the receiving country is unstable, or removal carries an unacceptable risk of human rights violations. Significant delays can result, placing the person subject to removal in an administrative and legal limbo. The person has no right to remain in Canada but Canada has no ability to effect the removal.\n\nFor certain foreign nationals, there may also be reasonable grounds to believe that they pose a danger to the public or are a flight risk and may not report to the CBSA for removal. In such cases, the Immigration Division (ID) of the Immigration and Refugee Board of Canada may order their arrest and detention pending removal (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55 (IRPA)).\n\nOver the course of a year, over 5,000 persons, inadmissible to Canada for various reasons, are held in immigration detention, either in immigration holding centres operated by the CBSA or in provincial correctional institutions. The vast majority of detentions are of short or intermittent duration—far less than 100 days. But some detainees are held for much longer. The appellant, Alvin John Brown, is an example of the latter.", - "current_to": "2020-08-07", + "text": "The Minister then ordered their surrender. In reaching his decision, he considered the principle of non-refoulement, but concluded it did not stand in the way of ordering the appellants’ surrender. The Minister noted first that there is an exception to non-refoulement with respect to persons who are accused of a serious non-political offence which he noted was defined in the immigration context to be an offence punishable by imprisonment of 10 years or more. Fraud, he noted, is such a crime. He did not, however, address the appellants’ contention that, given the amount of the alleged deprivation, the offences alleged against them would not attract a punishment of 10 years in Canada. The Minister then turned to the issue of risk of persecution. He stated his view that persons challenging their surrender on the basis that they will be persecuted in the requesting state must establish two things on the balance of probabilities: that the persecution would sufficiently shock the conscience or be fundamentally unacceptable to Canadian society and that they will in fact be subjected to this persecution. The relevant time for assessing this, he said, is the present, not the time at which refugee status had been granted, in this case, some six years earlier. To assist his consideration of risk the appellants would face if returned to Hungary, the Minister sought and received the views of the Department of Citizenship and Immigration. The advice was to the effect that, following Hungary’s accession to the European Union in 2004, there was no serious possibility that the appellants would be subjected in Hungary to persecution on the basis of their Roma origin.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-2", + "id": "scc-7899-5", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 4–6", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 8–9", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The Federal Court has described the facts surrounding Mr. Brown’s stay in Canada and eventual removal (2017 FC 710, per Fothergill J. at paras. 9-18). He was found to be inadmissible to Canada on the basis of a series of criminal convictions. At the end of his term of imprisonment he was ordered detained pending removal because he was both a danger to the public and a flight risk. Notwithstanding the increasing length of Mr. Brown’s detention, at each of his subsequent detention reviews the ID ordered that he continue to be detained.\n\nMr. Brown was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the CBSA was unable to obtain a travel document for Mr. Brown from the Jamaican High Commission during this time.\n\nIn the Federal Court, Mr. Brown, together with the End Immigration Detention Network, a third party with public interest standing, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the IRPA and sections 244 to 248 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (Regulations). There, they contended that the regime violates sections 7, 9, 12 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.", - "current_to": "2020-08-07", + "text": "The appellants sought judicial review of this decision in the Quebec Court of Appeal. Doyon J.A., writing for the Court of Appeal, dismissed the joint application for judicial review. In his view, the respondent had jurisdiction to order the surrender of the appellants after having consulted with the Minister of Citizenship and Immigration (“MCI”) about this. Doyon J.A. also concluded that the respondent’s decision was reasonable: [translation] He could reasonably conclude that the situation in Hungary is such that extradition of the applicants is not oppressive or unjust, does not shock the conscience of Canadians, and is not unacceptable. The opinion of the Minister of Citizenship and Immigration authorized him to conclude that the situation in Hungary has changed since the applicants’ departure. Hungary’s accession to the European Union in May 2004 is proof that the country has satisfied certain criteria with regard to the stability of its democratic institutions, the rule of law, human rights, and the respect and protection of minorities; it has also had to harmonize its laws and institutions with those of the European Union. The detailed risk analysis sent by the Minister of Citizenship and Immigration permits the assertion that the respondent could reasonably conclude that there is no longer a risk of persecution in Hungary on the basis of racial origin and that these changes indicate that the situation there is completely different from the situation there about a decade ago. [para. 38] III. Issues and Standard of Review\n\nThe case raises two main issues: 1. Does the Minister have the legal authority to surrender for extradition a refugee whose refugee status has not ceased or been revoked? 2. If so, did the Minister exercise that authority reasonably in this case?", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-3", + "id": "scc-7899-6", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 7–10", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 10", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Although Mr. Brown had been removed from Canada by the time of the hearing, no one asserted the objection of mootness. Nevertheless, the Federal Court considered mootness and, after reviewing the jurisprudence, exercised its discretion to hear the application in the public interest. No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion.\n\nThe Federal Court dismissed the appellants’ Charter challenge. They now appeal to this Court on the basis of the following certified question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nOnce a question is certified, all issues that bear upon the disposition of the appeal are at large (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 12 (Baker); Mahjoub v. Canada (Minister of Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 37).\n\nIn this Court, the appellants renew their constitutional challenge. They are supported by two interveners: the Canadian Association of Refugee Lawyers and the Canadian Centre for International Justice. The interveners advocate for specific procedural protections for immigration detainees including mandatory release dates, early disclosure by the Minister of Public Safety of any evidence relevant to a detainee’s case, and the imposition of an onus on the Minister of Public Safety to establish, with strong supporting reasons, that continued detention is warranted.", - "current_to": "2020-08-07", + "text": "The standard of judicial review is not contentious. The Minister’s decision to surrender for extradition should be treated with deference; it will generally be reviewed for reasonableness. However, in order for a decision to be reasonable, it must relate to a matter within the Minister’s statutory authority and he must apply the correct legal tests to the issues before him. As LeBel J. said on behalf of the Court in Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41: [T]he Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he has reached in applying that test should be upheld by a reviewing court unless it is unreasonable. . . . Given the Minister’s expertise and his obligation to ensure that Canada complies with its international commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition. [Emphasis added.] IV. Analysis A. Introduction", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-4", + "id": "scc-7899-7", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 11–13", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 11–12", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Casting a shadow on the appellants’ constitutional challenge is the Supreme Court of Canada decision, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui). There, the Supreme Court prescribed the process and protections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of the Charter.\n\nThe Supreme Court’s conclusions in Charkaoui are set forth in paragraph 96: The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual […]\n\nElsewhere, at paragraph 105 of Charkaoui, the Supreme Court recognized that immigration detention may have to be or may practically end up being indeterminate: “[i]t is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.” It rejected the detainee’s argument that after 5 years his detention had become indefinite and, thus, unconstitutional for that reason.", - "current_to": "2020-08-07", + "text": "The parties advance two competing approaches to the question of how to reconcile Canada’s obligations with respect to non-refoulement and extradition. The appellants (to put their position in broad terms) submit that the powers to extradite under the EA must be read as being subject to the detailed scheme for the treatment of refugees under the IRPA . In brief, a person with refugee status cannot be extradited until the refugee status has ceased or been revoked through the processes set out in the IRPA . The respondent, on the other hand, submits that the interaction of extradition and non-refoulement is addressed mainly through the EA and, more particularly, through the mandatory and discretionary bases on which the Minister may refuse surrender of a person sought for extradition.\n\nMy analysis will be structured around these two competing approaches. In the next section I will explain why in my view, the appellants’ central contention — that the power to surrender for extradition is subject to the refugee process under the IRPA — cannot be accepted. In the following section, I will address the respondent’s position, which I largely accept, that protection against refoulement is addressed in the extradition context by the mandatory and discretionary bars of surrender in the EA . I will also explain why, in my view, the Minister applied the wrong legal tests in exercising those powers in this case. B. The Minister’s Authority to Extradite a Refugee", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-5", + "id": "scc-7899-8", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 14–16", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 13–14", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The Supreme Court held that extended periods of detention under the IRPA do not violate the Charter if they are accompanied by regular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length of detention and the availability of alternatives to detention such as release on conditions (at paras. 110-117).\n\nBut the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant. In these circumstances, the Court concluded that, although prolonged detention under the regime established by the IRPA was constitutional, “[…] this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter” (at para. 123).\n\nCharkaoui stands in the way of the appellants’ argument that lengthy or indeterminate detention is per se unconstitutional. In response, the appellants launch a frontal attack on Charkaoui.", - "current_to": "2020-08-07", + "text": "The appellants’ and supporting interveners’ main submission is that, as a matter of statutory interpretation, the Minister dealing with an extradition request is bound by a finding under the IRPA that the person sought is a refugee and cannot surrender that person for extradition unless his or her refugee status has ceased or been vacated using the procedures provided for under the IRPA . This limitation, the appellants say, must be read into the EA for three main reasons. I will refer to these submissions as the “conflict” argument, the “silence” argument and the “fair process” argument. The first two will be addressed here and the third in the next section of my reasons. (1) The Conflict Argument\n\nThe first submission is that the Minister’s powers under the EA should be interpreted as not applying to refugees in order to avoid a conflict between the provisions of the EA and the IRPA. This submission is supported by the principle of statutory interpretation which presumes harmony, coherence, and consistency between statutes dealing with the same subject matter: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at paras. 30 and 52; Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 223-25.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-6", + "id": "scc-7899-9", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 17–19", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 15–16", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellants contend that where removal is no longer reasonably foreseeable, release is the only constitutionally compliant outcome, and the failure of the IRPA to expressly require release “in these circumstances” renders the scheme constitutionally deficient. Analogizing to the principles expressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan) the appellants contend that their section 7 and 9 Charter rights can only be protected by judicially mandated limits on the length of detention or, alternatively, that the scheme should be declared unconstitutional under section 52. They say that Charkaoui must be read in light of the principles expressed in Jordan.\n\nThe appellants advance a second attack on the detention scheme. The appellants say the fact that the legislation grants a discretionary power that may be exercised in an unconstitutional manner renders the enabling provision unconstitutional. The appellants contend that for the detention provisions of the IRPA to pass constitutional muster, it must be impossible for the ID to order detention when there is no reasonable prospect of removal.\n\nThe appellants and interveners also argue that the detention scheme offends section 7 of the Charter because it places an onus on detainees to justify why they should be released. As well, the appellants and interveners challenge the constitutionality of detention orders under section 12 of the Charter because the ID has no control over the location and conditions of detention. They also raise a procedural fairness challenge based on the limited disclosure by the Minister during detention hearings.", - "current_to": "2020-08-07", + "text": "The supposed conflict is between the non-refoulement provision (s. 115) of the IRPA and the Minister’s powers of surrender under the EA . Section 115 of the IRPA provides that a “protected person”, which includes a refugee, “shall not be removed from Canada to a country where they would be at risk of persecution”. The general powers of the Minister to surrender a person for extradition under the EA have no express limitation or exception relating to refugees. Thus, it is argued that the statutes conflict because the IRPA prohibits removal of a refugee to a place he or she will face persecution while the EA permits the Minister to do so by means of surrendering the person for extradition. The appellants’ position is that this conflict should be avoided by interpreting the Minister’s power of surrender under the EA as being subject to a requirement that a refugee may only be surrendered to the country he or she fled if the refugee’s status has ceased or been revoked by means of the processes set out in the IRPA .\n\nIn my view, there is no conflict between the IRPA and the EA because the prohibition on removal from Canada under s. 115 of the IRPA does not apply to extradition. Before turning to my reasons for reaching that conclusion, it will be helpful to place the issue in the broader context of refugee protection in Canada.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-7", + "id": "scc-7899-10", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 20–21", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 17", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The arguments challenging the detention scheme fail and so I would dismiss the appeal. However, as will be seen, ID members conducting detention reviews and judges sitting in judicial review, must consider Charter and administrative law standards. Although the appellants’ challenge to the validity of the sections fails, many of their arguments are vindicated by what is said in these reasons concerning what judges conducting detention reviews must consider.\n\nAll Charter analysis begins with an informed understanding of the legislation in question. The legislation must first be interpreted according to the accepted principles of statutory interpretation (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21). And in examining the effects of the legislation, as is necessary when applying the Charter, we must understand how it operates against the backdrop of accepted common law and administrative law principles (see, e.g., Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 at 1049; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at paras. 43-45; R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204 at para. 78; Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at 315).", - "current_to": "2020-08-07", + "text": "Canada has ratified the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), as well as the 1967 Protocol Relating to the Status of Refugees, Can. T.S. 1969 No. 29. The Refugee Convention defines “refugee” and sets out a series of obligations to them on the part of contracting states. While the Refugee Convention applied only to events occurring before January 1, 1951 (Article 1A(2)) and, at the option of the contracting party, only to events occurring in Europe, the state parties to the 1967 Protocol agreed to eliminate this temporal and geographical limitation on the Refugee Convention’s operation, with certain exceptions not relevant here (Article 1). Thus, under the Refugee Convention and the Protocol, the definition of refugee includes “any person who . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Refugee Convention, Article 1A(2)).", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-8", + "id": "scc-7899-11", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 22–24", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 18–19", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7, 9 or 12 of the Charter. The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui to find that extended periods of detention under the IRPA’s security certificate detention scheme did not contravene sections 7 and 12 of the Charter. These hallmarks include robust and timely review of the continued need for detention, the ability to “consider terms and conditions that would neutralize the danger” and the “fashion[ing of] conditions that would neutralize the risk of danger upon release” together with power to order release if satisfied that the need for detention no longer exists (Charkaoui at paras. 117, 119-123).\n\nCharkaoui is also clear guidance from the Supreme Court, along with many other leading authorities, that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982.\n\nTwo opening observations are in order.", - "current_to": "2020-08-07", + "text": "At the heart of the protections accorded to refugees under the Refugee Convention are the provisions relating to expulsion and return. Most relevant to the appeal is Article 33 which addresses the return of refugees to places where they may face persecution. This article embodies in refugee law the principle of non-refoulement which has been described as the cornerstone of the international refugee protection regime: United Nations High Commissioner for Refugees, Guidance Note on Extradition and International Refugee Protection (April 2008). Underlining the centrality of this provision is the fact that, by virtue of Article 42 of the Refugee Convention, ratifying states may not make reservations to the non-refoulement protections afforded by Article 33.\n\nStated in broad and general terms, the principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope: Kees Wouters, International Legal Standards for the Protection from Refoulement: A Legal Analysis of the Prohibitions on Refoulement Contained in the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention Against Torture (2009), at p. 25. The principle of non-refoulement has been enlarged beyond its application to refugees by modern international human rights law, but it is its scope in relation to the Refugee Convention that is pertinent to this appeal: William A. Schabas, “Non-Refoulement”, in Expert Workshop on Human Rights and International Co-operation in Counter-Terrorism: Final Report (2007), 20, at p. 23.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-9", + "id": "scc-7899-12", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 25–26", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 20–21", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "First, this appeal involves nothing more than applying settled principles to specific legislation and a specific evidentiary record. There is no real dispute between the parties on the settled principles. Thus, I will not elaborate on either the general content of section 7 (see, e.g., Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, 69 Imm. L.R. (4th) 297 at paras. 76-90; Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, 438 D.L.R. (4th) 148 at paras. 78-87) or the two-stage process to be followed when applying section 7 (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 at para. 68 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at para. 58). It is sufficient to say that Mr. Brown’s Charter rights are engaged, and that as a foreign national in Canada he has standing to challenge this legislative scheme using sections 7, 9 and 12 of the Charter (Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 at 201-202; see also R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 at para. 23 (Appulonappa)). Nor is there any dispute over the scope and content of sections 7, 9 and 12.\n\nThe second observation relates to the Supreme Court decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381 (Chhina), rendered while this appeal was under reserve and on which the parties made additional written submissions. A comment is required on the relevance of Chhina to the issues in this appeal.", - "current_to": "2020-08-07", + "text": "Article 33 of the Refugee Convention provides: 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.\n\nThe main legislative vehicle for implementing Canada’s international refugee obligations is the IRPA . Among the statute’s stated objectives is fulfilling Canada’s international legal obligations with respect to refugees: s. 3(2)(b). The IRPA provides that it is to be construed and applied in a manner that ensures that decisions taken under it are consistent with the Canadian Charter of Rights and Freedoms and comply with international human rights instruments to which Canada is signatory: s. 3(3)(d) and (f). The statute expressly incorporates certain provisions of the Refugee Convention. With some exceptions, the MCI is responsible for the administration of the Act: s. 4(1).", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-10", + "id": "scc-7899-13", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 27–29", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 22", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The constitutionality of the immigration detention scheme was not in issue before the Supreme Court in Chhina. The focus of that case was the availability of habeas corpus as an alternative remedy to judicial review to determine the legality of a detention order. The case did not require a full interpretation of the IRPA detention provisions and none was done. The questions raised here have not been answered. Nor did the Supreme Court in Chhina reverse or cast any doubt on Charkaoui, which directly applies to the question before this Court.\n\nUnder sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, a violation of human or international rights, serious criminality or organized criminality. Unless the removal order is stayed by the Federal Court, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (IRPA, s. 48(2)).\n\nUnder subsection 55(1), the ID may issue a warrant for the arrest and detention of a foreign national where there are reasonable grounds to believe they are inadmissible and pose a danger to the public or are a flight risk. No warrant is required for foreign nationals that are not protected persons, as defined under subsection 95(2) of the IRPA, and are a danger to the public or a flight risk, or whose identity cannot be confirmed (IRPA, s. 55(2)).", - "current_to": "2020-08-07", + "text": "That brings me to the provision in the IRPA on which the appellants rely heavily, s. 115. It is a statutory expression of the principle of non-refoulement providing that a protected person (which, by virtue of s. 95(2) includes a person on whom refugee protection is conferred) “shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion”. The full provision reads: Principle of Non-refoulement 115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. (2) Subsection (1) does not apply in the case of a person (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-11", + "id": "scc-7899-14", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 30", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 23–24", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Within 48 hours of arrest, or otherwise without delay, the ID is required to review the reasons for detention advanced by the Minister responsible for the CBSA, the Minister of Public Safety (IRPA, s. 57(1)). If the ID concludes that a detention order is appropriate, a second review must take place within the following seven days, and then again, if necessary, within every subsequent 30-day period (IRPA, s. 57(2)).", - "current_to": "2020-08-07", + "text": "Section 115 is directed to fulfilling Canada’s obligations under the Refugee Convention in relation to non-refoulement and there is, accordingly, a close correspondence between it and the relevant provisions of the Refugee Convention. The grounds on which removal is prohibited in s. 115(1) (i.e., risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or a risk of torture or cruel and unusual treatment or punishment) closely parallel those in Article 33 (life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion). The exceptions to the application of s. 115(1) as set out in s. 115(2) (serious criminality, danger to the public, violating human rights or danger to Canada’s security) closely follow the exclusions from the definition of refugee in Article 1F of the Refugee Convention (war crime, crime against humanity, serious non-political crime) and the grounds for expulsion of refugees provided for in Article 32 (national security or public order).\n\nI return, then, to the contention that s. 115, and particularly the phrase “shall not be removed from Canada”, prohibits extradition of a refugee. The submission is that the plain meaning of the words includes removal by extradition, that this interpretation is necessary to implement Canada’s obligations under the Refugee Convention; and that the judgment of the Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, supports this view. The respondent, on the other hand, submits that “removal” is a term of art under the IRPA and applies only to removal orders made under that Act.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-12", + "id": "scc-7899-15", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 31", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 25–26", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Subsection 58(1) stipulates that grounds for detention may exist in five circumstances: Release — Immigration Division 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. Mise en liberté par la Section de l’immigration 58.", - "current_to": "2020-08-07", + "text": "For the following reasons, I agree with the respondent. (a) Ordinary Meaning\n\nThe appellants emphasize the ordinary meaning of the words “removed from Canada” in s. 115(1) and that extradition is a form of “removal”. I agree, of course, that the ordinary meaning of these words is broad enough to include removal by any means including extradition. However, according to the often repeated “modern principle” of statutory interpretation, the words used in the IRPA must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd.(Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. When this is done, it becomes clear in my view that the term “removed” has a specialized meaning in the IRPA and that it does not include removal by extradition.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-13", + "id": "scc-7899-16", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 31–32", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 27", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants : a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l’étranger est interdit de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour grande criminalité, criminalité ou criminalité organisée; d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un étranger désigné qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause — n’a pas été prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l’identité de l’étranger; e) le ministre estime que l’identité de l’étranger qui est un étranger désigné et qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause n’a pas été prouvée.\n\nThe language of Parliament in subsection 58(1) is clear and the context and purpose of section 58 does not change the plain meaning of that language. Under subsection 58(1), detention must cease unless the ID is satisfied, on a balance of probabilities, that a ground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default.", - "current_to": "2020-08-07", + "text": "Section 115 must be considered in the context of the other provisions of the statute which also deal with the subject of removal. Division 5 of Part I of the IRPA addresses “Loss of Status and Removal”. The term “removal” is used in connection with the term “removal order” which is a specific order authorized by the IRPA in particular circumstances set out in detail therein: see, e.g., ss. 44(2), 45(d) and 48. “Removed” and “removal”, therefore, are words used in relation to particular procedures under the IRPA . This view is reinforced by the Immigration and Refugee Protection Regulations, SOR/2002-277. Section 53 of the IRPA provides that the regulations made under the IRPA may include provisions respecting “the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national”: s. 53(b). Part 13 of the Regulations, addresses removal. Section 223 specifies that there are three types of removal orders: departure orders, exclusion orders and deportation orders. Surrender orders under the EA are not included. The linking of removal to these three types of orders further reinforces the view that the words “removed” and “removal” refer to particular processes under the IRPA .", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-14", + "id": "scc-7899-17", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 33", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 28", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "But detention does not simply follow on proof of a ground for detention. Section 248 of the Regulations makes this clear. Before a detention order is made, the ID must proceed to the second stage and examine whether detention is warranted based on certain prescribed factors (see also Sasha Baglay & Martin Jones, Refugee Law, 2nd ed. (Toronto, ON: Irwin Law, 2017) at 389). The prescribed factors are as follows: Other factors 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; (e) the existence of alternatives to detention; and (f) the best interests of a directly affected child who is under 18 years of age. Autres critères 248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère, de l’Agence des services frontaliers du Canada ou de l’intéressé; e) l’existence de solutions de rechange à la détention; f) l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché.", - "current_to": "2020-08-07", + "text": "This view is also supported by the terms of s. 115 itself. Section 115(1) provides that a protected person may not be “removed from Canada” to face persecution, risk of torture or cruel and unusual punishment. However, s. 115(2) creates exceptions to this prohibition in relation to persons who are inadmissible on certain grounds. Under s. 115(2)(a), protection against removal in s. 115(1) does not apply in the case of a person who is inadmissible on grounds of serious criminality and who in the opinion of the MCI constitutes a danger to the public. Inadmissibility on the grounds of serious criminality is addressed under s. 36 of the IRPA . Under s. 115(2)(b), the protection does not apply to persons inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the MCI, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. Inadmissibility on the grounds of security, human rights violations and organized criminality are dealt with in the IRPA : ss. 34, 35 and 37. Thus, s. 115 deals with inadmissibility as defined under the IRPA and calls for the exercise of discretion by the MCI in relation to the danger of the person remaining in Canada. This, in my view, grounds the section in the processes of determining inadmissibility and ordering removal under the IRPA . It does not address extradition.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-15", + "id": "scc-7899-18", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 34–36", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 29–30", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "These factors were first articulated by Rothstein J., then of the Federal Court, in Sahin v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 214, 5 Imm. L.R. (3d) 159 (Fed. T.D.) at 231 (Sahin). They were subsequently given legislative expression in section 248 of the Regulations, which came into force in 2002 (S.O.R./2002-227).\n\nIn considering alternatives to detention, the ID may impose any conditions on the detainee that it considers necessary to mitigate the risks (IRPA, s. 58(3)). Either the Minister or the detainee may subsequently apply to vary these conditions on the basis that they are no longer necessary to ensure compliance.\n\nIf the ID orders detention, the detainee is remitted to the custody of the CBSA. The CBSA may decide to place the detainee in an Immigration Holding Centre (IHC), or transfer the detainee to provincial authorities to be housed in a provincial correctional institution. The ID has no control over the privileges a detainee has access to while detained. If a detainee is dissatisfied with the conditions of their detention, they can bring a judicial review application in the Federal Court, if housed in a federal institution, or, if in a provincial institution, in the provincial superior court using legislation such as the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.", - "current_to": "2020-08-07", + "text": "It is also worth noting that while s. 115 of the IRPA does not refer to extradition, it is mentioned elsewhere in the IRPA . So, as we shall see shortly, s. 105 of the IRPA deals explicitly with certain aspects of the interaction of extradition proceedings and refugee claims and s. 112(2) (a) of the IRPA precludes persons from applying for protection under s. 112(1) when they have been ordered removed from Canada and have extradition proceedings pending against them. The IRPA , therefore, in certain instances expressly deals with the interplay between extradition and the refugee and the removal process. The fact that it does supports an inference that when Parliament intended to address that interplay, it did so expressly. There is, as noted, no express provision in the IRPA dealing with the extradition of refugees.\n\nFinally on this point, the time limits for the Minister’s surrender decision under the EA make it unlikely that Parliament intended to require him to await an application by the MCI under the IRPA for revocation or cessation of refugee status before being able to surrender a refugee. Sections 40(1) and (5) (b) of the EA require the Minister to order surrender, if he so decides, within 90 days after the person’s committal, with the possibility of a 60-day extension when the person has made submissions. These timelines are unrealistically short to allow the Minister to request the MCI to apply to the Refugee Protection Division for cessation or revocation of a person’s refugee status and for that process to run its course as a precondition for the exercise of the Minister’s surrender powers.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-16", + "id": "scc-7899-19", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 37–38", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 31–32", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "It is clear from this review that the immigration detention scheme has all of the protections mandated by Charkaoui to ensure that extended periods of detention do not violate sections 7, 9 and 12 of the Charter. Detention reviews are timely and frequent: subsection 57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court.\n\nThe Supreme Court has recently suggested in obiter in Chhina (at para. 60) that the factors under section 248 of the Regulation may be deficient or vague because they do not expressly require release if removal is not foreseeable. This obiter statement, made in passing, does not repeal the central holding of the Supreme Court in Charkaoui, namely that an ongoing detention does not automatically run afoul of the Charter. In Charkaoui, the section 248 factors formed the heart of the issue before the Court. It would be startling if some idle words in Chhina displaced the detailed, well-considered and necessary holding in Charkaoui, almost as if by a side-wind.", - "current_to": "2020-08-07", + "text": "To conclude on this point, my view is that when s. 115 is read in context, it is clear that the words “removed from Canada” in s. 115(1) refer to the removal processes under the IRPA , not to surrender for extradition under the EA . There is, therefore, no conflict between the two statutes. (b) Canada’s International Obligations\n\nThe appellants submit that as s. 115 is addressed to the issue of non-refoulement it should be interpreted in a way that is consistent with Canada’s non-refoulement obligations under the Refugee Convention. That obligation under Article 33 is not to “expel or return (‘refouler’) a refugee” and it is now widely accepted that this obligation applies to removal by way of extradition. It follows, the submission goes, that “removal” in the IRPA should receive the same broad interpretation. Only this interpretation, it is argued, is consistent with Canada’s obligations in relation to non-refoulement under the Refugee Convention. While I agree with the principle on which this submission is based, I do not agree that it applies here.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-17", + "id": "scc-7899-20", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 39", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 33", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Nevertheless, the appellants say that the legislation does not go far enough. They note that the IRPA is constitutionally flawed in that does not expressly say that there can be no detention in the absence of a reasonably foreseeable prospect of removal and does not impose a maximum period of time during which a person can be detained. For the reasons that follow, these arguments fail.", - "current_to": "2020-08-07", + "text": "I accept that protection against refoulement under the Refugee Convention applies to expulsion by extradition. Admittedly, the Refugee Convention does not explicitly say so and a number of states in 1951 were of the view that it did not apply to extradition. However, this restrictive view is not consistent with the wording of the Refugee Convention or its obvious human rights purpose and this limited view is no longer generally accepted. The wording of the protection — “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever” — is so broad that it must include return by means of extradition and the commentators are unanimous in the view that it does: Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd ed. 2007), at pp. 257-62; Wouters, at p. 136; Sibylle Kapferer, United Nations High Commissioner for Refugees, The Interface between Extradition and Asylum, November 2003; Elihu Lauterpacht and Daniel Bethlehem, “Avis sur la portée et le contenu du principe du non-refoulement” in Erika Feller, Volker Türk and Frances Nicholson, eds., La protection des réfugiés en droit international (2008), 119, at pp. 144-45; United Nations High Commissioner for Refugees, Problems of Extradition Affecting Refugees, 16 October 1980, No. 17 (XXXI) — 1980; Cordula Droege, “Transfers of detainees: legal framework, non-refoulement and contemporary challenges” (2008), 90 Int’l Rev. Red Cross 669, at p. 677.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-18", + "id": "scc-7899-21", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 40", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 34–36", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "A statutory power, such as the power to detain in this case, can only be used for the purposes for which it was intended. This principle of administrative law stems from the requirement that all government action must be authorized by a grant of legal authority. Whether express or implied, the text of a statute, seen in light of its context and purpose, prescribes the limits of the legal authority of a decision-maker exercising discretionary power (Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters, 2019) at § 15:2241; Entertainment Software Assoc. v. Society Composers, 2020 FCA 100 at para. 88 (Entertainment Software Assoc.) and cases cited therein). The classic statement of this principle is found in Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Roncarelli) where Rand J. said (at 140): In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.[...][T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.", - "current_to": "2020-08-07", + "text": "I also accept, of course, that, where possible, statutes should be interpreted in a way which makes their provisions consistent with Canada’s international treaty obligations and principles of international law. As LeBel J. noted in R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53, it is presumed that the legislature acts in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community as well as in conformity with the values and principles of customary and conventional international law: see also, for example, Zingre v. The Queen, [1981] 2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 70; and Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 50.\n\nThe presumption that legislation implements Canada’s international obligations is rebuttable. If the provisions are unambiguous, they must be given effect: see, e.g., Schreiber, at para. 50. As I have discussed at length earlier, s. 115 does not address removal by extradition and so its clear meaning must be given effect. Moreover, I do not accept that this interpretation of s. 115 results in Canadian domestic law failing to respect its non-refoulement obligations under the Refugee Convention. My view is that those obligations in the context of extradition are fully satisfied by a correct interpretation and application of s. 44 of the EA , as I will explain in the next section of my reasons.\n\nTo sum up, my view is that s. 115 cannot and need not be interpreted as applying to removal by extradition. (c) Suresh", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-19", + "id": "scc-7899-22", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 41–42", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 37–39", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Citing Roncarelli, the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 observed (at para. 108) (Vavilov): […] while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply \"with the rationale and purview of the statutory scheme under which it is adopted\": Catalyst […]. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Ltd., 2010 FCA 193, [2011] 4 F.C.R. 203 (F.C.A.), at paras. 38-40.\n\nThe IRPA has many purposes and objectives, including ensuring the safety and security of Canadians and the promotion of international justice by denying safe harbour for criminals or those who pose a security risk (IRPA, paras. 3(1)(h), (i)). The power to detain, as set out in subsection 58(1), is one of the mechanisms by which those purposes are realized. That detention can only be ordered where it is linked, on the evidence, to one of the enumerated grounds listed in subsection 58(1) is an application of this principle. The power to detain must always remain tethered to the IRPA’s purposes and objectives.", - "current_to": "2020-08-07", + "text": "It is submitted that Suresh, at para. 7, supports the position that s. 115 prohibits extradition of a refugee. Respectfully, however, my view is that Suresh does not provide support for this view.\n\nSuresh was concerned with deportation of a refugee on security grounds; it had nothing to do with extradition. Deportation, unlike extradition, is one of the forms of removal provided for in the IRPA Regulations. In para. 7 of the reasons in Suresh, which is the first paragraph of the section headed “Facts and Judicial Proceedings”, there is a brief reference to s. 53(1) of the Immigration Act, R.S.C. 1985, c. I-2, the predecessor provision of the present s. 115 of the IRPA . The Court stated: “Recognition as a Convention refugee has a number of legal consequences; the one most directly relevant to this appeal is that, under s. 53(1) of the Immigration Act, generally the government may not return (‘refouler’) a Convention refugee ‘to a country where the person’s life or freedom would be threatened’” (para. 7). While the Court used the word “return” instead of the statutory word “remove”, I do not consider this brief description of non-refoulement, which I note starts with the word “generally”, as helpful authority about how the relevant section of the IRPA relates to extradition.\n\nI conclude that s. 115 of the IRPA does not address removal by extradition. There is, therefore, no conflict between this provision and the provisions of the EA authorizing the Minister to surrender a refugee for extradition. I reject the conflict argument. (2) The “Silence” Argument", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-20", + "id": "scc-7899-23", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 43–45", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 40", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The implicit requirement that the power to detain can only be exercised where it facilitates the purposes of the IRPA has guided the IRPA’s interpretation for decades. In Sahin at 226-229, Rothstein J. drew on R. v. Governor of Durham Prison, Ex parte Singh, [1984] 1 All E.R. 983, [1984] 1 W.L.R. 704 (Q.B.). There, in considering the immigration detention power provided by the Immigration Act, 1971, Woolf J. (as he then was) concluded that the Act was subject to two implicit limitations: the power to detain was limited to the purposes of removal and the responsible minister must move “with all reasonable expedition” to ensure removal.\n\nSection 58 of the IRPA authorizes detention for several purposes, including pending determination of identity, pending a determination of admissibility or on the grounds of public safety. The power of detention will be exercised principally, but not exclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention must always be tethered, on the evidence, to an enumerated statutory purpose. To conclude, the IRPA is not constitutionally deficient because it does not state expressly that which the law already requires.\n\nThis conclusion is not altered by the Charter.", - "current_to": "2020-08-07", + "text": "The EA expressly addresses extradition of a refugee claimant (see s. 40(2)) but it is silent in relation to extradition of a person with refugee status. On this foundation, the appellants erect their silence argument: the absence of a provision in the EA expressly addressing the extradition of a person with refugee status should be understood as withholding that power from the Minister. This view is reinforced, according to the submissions, by two other considerations. First, claims for refugee status are determined by specialized processes and decision-makers under the IRPA ; the powers of the Minister under the EA should therefore not be interpreted to allow him in effect to usurp the jurisdiction of these specialized processes and decision-makers. Second, the suspension of refugee proceedings when extradition proceedings are initiated, as provided for in s. 105 of the IRPA , does not apply to all extraditable offences. The suspension applies only to extradition proceedings in relation to offences punishable by 10 years or more of imprisonment. Thus, the legislative intent is to leave in place the normal refugee process for persons sought with respect to less serious offences. This, it is argued, supports the view that suspension is the exception and the general rule is that the refugee process remains in place for individuals not falling within that exception. The appellants, as persons who have previously been accorded refugee protection, do not fall within the exception and therefore are not subject to removal except in accordance with the provisions of the IRPA .", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-21", + "id": "scc-7899-24", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 46–47", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 41–43", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Interwoven with the modern approach to the interpretation of legislation is the presumption that Parliament intends to enact legislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1078 (Slaight); R. v. Swain, [1991] 1 S.C.R. 933, 125 N.R. 1 at 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 at 660; R. v. Lucas, [1998] 1 S.C.R. 439, 157 D.L.R. (4th) 423 at para. 66).\n\nThe presumption of compliance is that “the legislature intends to make legislation that complies with the constitution, and to the extent possible legislation is therefore interpreted to achieve that result” [emphasis in original] (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis, 2014) 523, at § 16.3 (Sullivan on the Construction of Statutes)). This principle is engrained in Supreme Court of Canada jurisprudence dating back over half a century (see McKay et al. v. The Queen, [1965] S.C.R. 798, 53 D.L.R. (2d) 532 at 803-804). In R. v. Sharpe, 2001 SCC 2, [2001] S.C.R. 45 at para. 33, McLachlin C.J.C. confirmed the presumption’s application in situations where Charter rights are implicated. More recently, the Supreme Court has said that the detention provisions of the IRPA, the very legislation in question here, ought to be interpreted “harmoniously with the Charter values that shape the contours of its application” (Chhina at para. 128, Abella J., dissenting but not on this point).", - "current_to": "2020-08-07", + "text": "As noted earlier, I accept the two principles underlying these submissions: non-refoulement protection under the Refugee Convention applies to expulsion by extradition and that our domestic laws are presumed to comply with our international obligations. I do not agree, however, that applying these principles in this case leads where the appellants would take us. In my view, the IRPA does not and was not intended to implement Canada’s international obligations against refoulement in the context of expulsion by extradition. That role, as I will explain in the next section of my reasons, is assigned to s. 44 of the EA .\n\nThe “silence” argument is premised on the fact that the EA addresses extradition only in the context of a refugee claimant, not a person with refugee status. However, applying the same reasoning to the IRPA , one notes that the IRPA itself expressly deals with extradition in only two contexts, ss. 112 and 105, neither of which relates to extradition of a refugee. In both contexts, the legislative intent is to give primacy to the extradition proceedings.\n\nExtradition is referred to in s. 112 of the IRPA . That provision deals with applications for protection by those subject to removal orders. Section 112(2)(a) provides that persons may not apply for such protection if they are the subject of an authority to proceed under the EA .", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-22", + "id": "scc-7899-25", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 48–51", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 44", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Nevertheless, the appellants and interveners contend that the Supreme Court has changed the law in the relatively recent, post-Charkaoui decision of Jordan. They say that the Supreme Court has now recognized that in some situations maximum time limits must be imposed to ensure Charter compliance. Mr. Brown argues the appropriate maximum limit in detention is six months, while the End Immigration Detention Network argues that it is three months; after expiry of those limits, they say the detention is arbitrary and violates sections 7 and 9.\n\nJordan does not alter the constitutional holdings in Charkaoui. It is not authority for the proposition that sections 7 and 9 of the Charter require fixed limits on detention.\n\nIn Jordan, the Supreme Court established ceilings beyond which pre-trial delay becomes presumptively unreasonable under section 11(b) of the Charter. Beyond the ceiling, the burden shifts to the Crown to rebut the presumption of unreasonable delay based on exceptional circumstances. The ceiling was set at 18 months for offences tried in provincial court, and 30 months for those tried in the superior court or those tried in provincial court after a preliminary inquiry (Jordan at para. 105).\n\nThe objective of the guidelines established in Jordan was to protect the constitutional right to trial within a reasonable time under section 11(b) of the Charter. But the considerations which prompted the Court to establish those guidelines contrast markedly with those surrounding immigration detention. As I will explain, the differences between the criminal justice system and that of immigration detention could not be greater.", - "current_to": "2020-08-07", + "text": "Another context in which extradition is mentioned in the IRPA is in s. 105 dealing with the extradition of persons with pending refugee claims. The section provides that the Refugee Protection Division and the Refugee Appeal Division cannot commence and must suspend consideration of any matter concerning a person against whom an authority to proceed has been issued under s. 15 of the EA with respect to certain offences, namely those punishable under federal law by at least 10 years’ imprisonment. The suspension lasts until a final decision under the EA with respect to the discharge or surrender of the person has been made. If the person is discharged at the extradition proceedings, the refugee proceedings may be commenced or continued: s. 105(2). If the person is ordered surrendered for an offence punishable by a term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of the claim for refugee protection based on section F(b) of Article 1 (serious non-political crime) of the Refugee Convention: s. 105(3). The deemed rejection may not be appealed and a person who has not made a claim for refugee status before the order of surrender was made may not do so thereafter: ss. 105(4) and (5).", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-23", + "id": "scc-7899-26", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 52–53", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 45", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Together, the federal and provincial governments have complete control over almost every aspect of the criminal justice system and the variables that affect delay. The federal government has responsibility for substantive criminal law and criminal procedure via the Criminal Code, R.S.C. 1985, c. C-46. The construction of courtrooms, appointment of judges, staffing of provincial courts and prosecutors, and the resources available to police to organize disclosure are all within the legislative competence of either the federal or provincial governments.\n\nIn contrast, while removal is one of the objectives of detention, Canada does not have complete control over its realization. Removal may be frustrated by political turmoil in the receiving state. Removal may be delayed by a dearth of evidence as to identity (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Rooney, 2016 FC 1097, [2017] 2 F.C.R. 375). Travel documents must be obtained from a great number and diversity of countries, some of which may not be in a hurry to have a particular national returned. Each will have a different view of what constitutes a timely administrative response to requests for travel documents. Removal is dependent on the cooperation of the receiving state, which, for a myriad of reasons, may be reluctant to or incapable of issuing a travel document. Mr. Brown’s situation is a good example. In spite of various, often unanswered, entreaties on the part of the CBSA, it took the Jamaican government nearly five years to confirm Mr. Brown’s nationality and issue a travel document. With the document finally in hand, the CBSA deported Mr. Brown the next day.", - "current_to": "2020-08-07", + "text": "These provisions address only those seeking refugee status; not those who already have been granted refugee protection. Further, the provisions do not apply in the case of all offences for which extradition may be ordered. As we shall see, extradition may be ordered if the conduct with respect to which extradition is sought, had it occurred in Canada, would have constituted an offence that is punishable by a term of imprisonment of two years or more (or as specified in the extradition agreement): s. 3(1) of the EA (I put aside the special provision in relation to specific agreements in s. 3(1)(b)(i)). However, the suspension of proceedings before the Refugee Protection Division, as set out in s. 105 of the IRPA , applies only if extradition is sought with respect to conduct which under Canadian law is punishable by imprisonment of 10 years or more: s. 105(1). Presumably, this is to permit the suspension provisions to apply only to those excluded from refugee status under the serious crime exception set out in section F of Article 1 of the Refugee Convention. Thus, for these purposes Canada has defined “serious crimes” as those punishable by 10 years or more of imprisonment and has decided that if there is sufficient evidence to warrant committal in extradition proceedings, the “serious reasons for considering” test under the Refugee Convention in relation to serious non-political crimes has been met.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-24", + "id": "scc-7899-27", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 54–56", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 46", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellants rely on international law and the law of foreign jurisdictions to argue that a textual reading of the IRPA pertaining to immigration detention is inconsistent with basic international norms.\n\nThere is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 53 (Hape)). “Where possible” is a key qualifier (Entertainment Software Assoc. at paras. 76-92). Absent contrary indication, legislative provisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape at para. 53; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 at para. 47; Sullivan on the Construction of Statutes at §18.6; see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paras. 82–87 and Entertainment Software Assoc. at paras. 89-90).\n\nTherefore, both Canada’s international treaty obligations and the principles underlying international law can play a role in the interpretation of Canadian laws. This is reinforced by paragraph 3(3)(f) of the IRPA, which directs that the Act “is to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory.”", - "current_to": "2020-08-07", + "text": "These suspension provisions were added to the IRPA as consequential amendments when the EA was enacted in 1999. Their purpose was explained by Departmental officials testifying before Parliamentary committees. Resort to this material is appropriate where, as here, it is relevant and reliable and provided it is used with caution and not given undue weight: Sullivan, at pp. 609-14; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17; Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870, at para. 23; Canada 3000 Inc. (Re), 2006 SCC 24, [2006] 1 S.C.R. 865, at paras. 57-59.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-25", + "id": "scc-7899-28", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 57–58", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 47", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "There is, however, an important counterweight to these principles—the doctrine of Parliamentary supremacy. An unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 50; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449 at 1371; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 16; Hape at para. 54; and see generally the comprehensive discussion in Entertainment Software Assoc. at paras. 76-92).\n\nThere is no doubt as to the design, operation or effect of the detention provisions. The appellants have not identified ambiguities or duelling interpretations that would open the door to an interpretation most consistent with international law. Reduced to its essence, the appellants’ argument is simply that in some jurisdictions immigration detention is dealt with somewhat differently. Leaving section 1 of the Charter aside, in light of Parliament’s clear legislative choice as to the design of the immigration detention scheme, the practices or legislative frameworks of other jurisdictions are irrelevant.", - "current_to": "2020-08-07", + "text": "The amendments sought to harmonize the extradition and refugee recognition processes and to entrust to the Minister of Justice the ultimate decision about the extradition of a person claiming refugee status: see, for example, testimony of Jacques Lemire, Senior Counsel, International Assistance Group, Department of Justice, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 60, 1st Sess., 36th Parl., March 10, 1999, at pp. 60:6 et seq.; testimony of Gerry Van Kessel (Director General, Refugees, Department of Citizenship and Immigration, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights (November 17, 1998). As Mr. Van Kessel put it during his testimony: . . . the basic question we believe we face is how to deal with persons who are facing extradition and make refugee claims. At the present time they are separate processes. . . . Bill C-40 [which became the 1999 Extradition Act ] changes will legislate the rules for the interaction between the extradition process and the refugee determination process for the first time. . . . Bill C-40 also says protection [i.e. of refugees] remains an issue and a concern that the Minister of Justice needs to deal with, and that is also dealt with in Bill C-40. The choice made there is that the Minister of Justice, before making a final decision on extradition or surrender order, shall refuse to make a surrender if the refugee definition applies . . . . In a sense, what has really changed here is who the decision-maker is. [Emphasis added; at 11:45 and 12:05.]", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-26", + "id": "scc-7899-29", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 59–60", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 48–49", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "In any event, as the Federal Court concluded, the Canadian immigration detention scheme is consistent with that of the United Kingdom. The UK legislation does not mandate fixed periods of maximum detention but, as in section 248 of the Regulations, articulates a number of discretionary considerations relevant to whether a detention order should issue. Turning to the European Union, while the EU Return Directive does set a maximum period of detention of 18 months, member states are not required to comply with this limit where third country nationals are denied entry at a country’s border or where, like Mr. Brown, they are being returned following inadmissibility rulings arising from criminal convictions. The Ontario Court of Appeal, in hearing Mr. Brown’s habeas corpus application, did not find his arguments grounded in international law to be persuasive (Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124 at paras. 37-38).\n\nThe immigration detention regime is constitutionally sound and does not infringe sections 7 or 9 of the Charter. No principle of statutory interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To require an express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read in a redundancy. The statute books of our land would read very differently if, to ensure constitutionality, they had to codify all the applicable common law and constitutional law principles that frame the interpretation and understanding of legislation.", - "current_to": "2020-08-07", + "text": "This evidence is consistent with the text and scheme of the EA and the IRPA: the Minister of Justice was intended to take the lead when a refugee’s rights are implicated in an extradition decision. In addition, the reference in the evidence to the Minister’s duty to refuse surrender “if the refugee definition applies” clearly refers to s. 44 of the EA , not to s. 115 of the IRPA . I will come back to this point.\n\nThe appellants and interveners submit, in effect, that the earlier finding of refugee status under the IRPA is binding on the Minister under the EA until it is ended using the procedures of cessation or revocation under the IRPA . This position, as I have discussed earlier, finds no explicit support in the text of the IRPA or the EA and is inconsistent with the apparent intention of Parliament. Moreover, this “binding effect” argument is not well supported by international law principles.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-27", + "id": "scc-7899-30", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 61–63", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 50", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellants advance an alternate argument. They contend that the question to be answered is not whether the legislation can be applied in a constitutionally sound manner, but rather whether the ID is empowered by the legislation to violate the detainees’ Charter rights. Put otherwise, because the discretion in section 248 is not expressly subordinated to the obligation to release in the face of an unreasonably lengthy detention or a removal that is not reasonably foreseeable, the scheme is constitutionally defective. The appellants focus on the scope of the word “consider” and the fact that the duration of detention is but one factor to be considered in section 248 of the Regulations. They say that a constitutionally compliant statute is one under which unconstitutional over-holding is impossible.\n\nThis argument is inconsistent with established methodology of Charter analysis. As I will explain, the appellants’ argument invites this Court to do precisely what the Supreme Court has instructed us not to do since the inception of the Charter.\n\nThe first question a court must ask in any Charter challenge is whether the infringement arises from the provisions of the legislation or whether it arises from a discretion granted by the legislation.", - "current_to": "2020-08-07", + "text": "Under the Refugee Convention, refugee status depends on the circumstances at the time the inquiry is made; it is not dependent on formal findings. As one author puts it, “it is one’s de facto circumstances, not the official validation of those circumstances, that gives rise to Convention refugee status”: James C. Hathaway, The Rights of Refugees Under International Law (2005), at pp. 158 and 278. It follows that the rights flowing from the individual’s situation as a refugee are temporal in the sense that they exist while the risk exists but end when the risk has ended. Thus, like other obligations under the Refugee Convention, the duty of non-refoulement is “entirely a function of the existence of a risk of being persecuted [and] it does not compel a state to allow a refugee to remain in its territory if and when that risk has ended”: Hathaway, at p. 302; R. (Yogathas) v. Secretary of State for the Home Department, [2002] UKHL 36, [2003] 1 A.C. 920, per Lord Scott of Foscote, at para. 106. The relevant time for assessment of risk is at the time of proposed removal: Hathaway, at p. 920; Wouters, at p. 99. This temporal understanding of refugee status under the Refugee Convention does not support the “binding effect” approach to earlier formal findings of refugee status.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-28", + "id": "scc-7899-31", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 64", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 51", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "A statutory provision cannot be interpreted in a manner that grants discretion to infringe the Charter unless such infringement is mandated by Parliament. The comments of Lamer J. (as he then was) in Slaight are apposite (at 1078): […] As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [Emphasis added]", - "current_to": "2020-08-07", + "text": "In addition, to the extent that this “binding effect” argument is based on the need for a particular procedural approach, that position is not supported by Canada’s obligations under the Refugee Convention. The Refugee Convention does not contain specific procedural provisions. While it does provide that refugees shall have free access to the courts (Article 16) and due process in relation to expulsion decisions (Article 32), it does not bind the contracting states to any particular process for either granting or withdrawing refugee status. Thus, Canada’s international undertaking with respect to non-refoulement does not commit it to any particular procedural scheme for its application in extradition matters.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-29", + "id": "scc-7899-32", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 65–66", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 52", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "When a party attacks the validity of a legislative provision, the relevant inquiry is whether the law being attacked produces an unconstitutional effect. Where unconstitutional acts are committed under constitutional laws, the Supreme Court has noted that “[t]he acts of government agents acting under such regimes are not the necessary result or ‘effect’ of the law, but of the government agent’s applying a discretion conferred by the law in an unconstitutional manner. Thus, section 52(1) is not applicable. The appropriate remedy lies under s. 24(1)” (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 59-60 (Ferguson); see also Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 at 719-720, Lamer C.J.C.).\n\nLittle Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 (Little Sisters) is also instructive. In that case, the appellants argued that the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and Customs Tariff, R.S.C. 1985, c. 41 (3rd Supp.) infringed their section 2(b) and section 15 Charter rights. The argument focused in part on the unconstitutionality of the prohibition against obscenity, set out in the Criminal Code, R.S.C. 1985, c. C-46 when applied by customs officers, with Little Sisters arguing that a regulatory structure open to maladministration was unconstitutionally under-protective of their constitutional rights (at para. 71).", - "current_to": "2020-08-07", + "text": "Moreover, looking beyond the terms of the Refugee Convention, I have not found any international law norm to the effect that extradition may only be ordered if a previous finding that a person is a refugee has been formally set aside. So far as I have been able to determine, state practices on this point vary considerably. Kapferer notes that, in some countries, recognition of refugee status by the asylum (refugee) authorities is binding on those dealing with extradition requests. She also notes, however, that this is not the case in other states (paras. 273-77): see also M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th ed. 2007), at p. 193; E. P. Aughterson, Extradition: Australian Law and Procedure (1995), at pp. 35-36. Similarly, the United Nations High Commissioner for Refugees in Guidance Note on Extradition and International Refugee Protection, at para. 53 acknowledges that in some countries, the extradition authorities are not bound by a previous formal conferral of refugee status by the immigration or asylum authorities. It seems that this is not problematic from an international law point of view, provided that the extradition authorities give due weight to the obligation of non-refoulement by fairly examining the question of whether the risk of persecution persists. I conclude that Canada’s obligations under the Refugee Convention do not require an earlier formal determination of refugee status to be binding on the extradition authorities. (I should add that in this case Canada is both the state that formally accorded refugee protection to the appellants and the requested state in the extradition process.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-30", + "id": "scc-7899-33", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 67–70", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 52–55", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The Supreme Court held that there is no constitutional rule that requires Parliament to address, affirmatively, the customs treatment of constitutionally protected expressive material by legislation rather than by way of regulation, ministerial directive or even departmental practice. Parliament is entitled to proceed on the basis that its enactments “will be applied constitutionally” by the public service (at para. 71).\n\nThe Supreme Court found that the source of the problem lay with customs officials who had been acting outside of the constitutionally sound statutory framework by specifically targeting homosexual erotica in violation of section 15(1) of the Charter. Binnie J., writing for the majority of the Court, stated “[...] there is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation” (at para. 125).\n\nAs in the case before us, the appellants’ complaint in Little Sisters was about what Parliament did not enact, rather than what it did enact. For this reason, Binnie J. distinguished cases like R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 where the legislative scheme itself was held to be unworkable (Little Sisters at paras. 72, 128).\n\nThe appellants rely on Appulonappa for the proposition that the legislation at issue is defective because it does not preclude the possibility of unconstitutional over-holding.", - "current_to": "2020-08-07", + "text": "It is not necessary, therefore, to address the situation in which extradition is requested from Canada of a person whose refugee status was formally accorded by another state.)\n\nFor these reasons, I reject the appellants’ silence argument. (3) The “Fair Process” Argument\n\nThe interveners, Québec Immigration Lawyers Association and Canadian Council for Refugees, in different ways, make the point that the powers of the Minister of Justice to surrender a person sought under the EA do not adequately give effect to Canada’s obligations under the Refugee Convention. They submit, in effect, that the protections under the IRPA are different and better than those found in the EA . However, these submissions are based on the wrong comparison. The protections in the IRPA in relation to non-refoulement do not apply to extradition; the question, therefore, is not whether the EA provides the same protection as the IRPA would if it did apply, but how the Minister’s surrender powers under the EA should be interpreted and applied having regard to its provisions read in light of Canada’s international undertakings and the Charter . I will take up that issue in the next section of my analysis. (4) Summary of Conclusions\n\nIn my view, the IRPA does not constrain the authority of the Minister to extradite a person with refugee status. I conclude that the Minister has that authority under the EA . That brings us to the question of whether the Minister exercised his authority reasonably in this case. C. Did the Minister Reasonably Exercise His Authority to Surrender the Appellants? (1) Introduction", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-31", + "id": "scc-7899-34", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 71–74", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 56–57", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "In Appulonappa the Supreme Court found that section 117 of the IRPA, which criminalized the smuggling of aliens into Canada, was unconstitutionally overbroad and contrary to section 7 insofar as it captured humanitarian efforts, mutual aid amongst asylum-seekers or individuals who assisted close family members. The Court found that subsection 117(4), which required that the Attorney General must consent for a prosecution to proceed under section 117, could not save the provision because it was not impossible that the Attorney General could consent to prosecution in a case that was overbroad of the legislative purpose (at paras. 74-77).\n\nAppulonappa does not stand for the proposition that constitutional compliance depends on the “impossibility” of an unconstitutional exercise of discretion.\n\nIn that case, the residual prosecutorial discretion of the Attorney General was advanced as an alternate argument to cure the admittedly overbroad and constitutionally infringing provision of the Criminal Code. Put otherwise, it was argued that the overbreadth of section 117 was remedied by the Attorney General’s discretion to choose not to prosecute. The Supreme Court rejected that argument. The standard of “impossibility” was premised on a finding that the charging provisions were, in and of themselves, infringing.\n\nHere, in contrast, the scheme is constitutional. Where there are regular detention reviews that give full and fair consideration to the non-exhaustive considerations in section 248, prolonged detention is constitutional. Rather than being a source of unconstitutionality, the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances.", - "current_to": "2020-08-07", + "text": "Section 44(1) (a) and (b) of the EA set out the grounds on which the Minister must refuse to surrender a person sought. In brief, they are first, if the Minister is satisfied that surrender would be unjust or oppressive in all of the relevant circumstances; second, if the Minister is satisfied that the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, etc.; and third, if the Minister is satisfied that person’s position may be prejudiced for any of those reasons.\n\nIn this case, the Minister focussed exclusively on the first ground. He required the appellants to establish, on the balance of probabilities, that they would face persecution on their return to Hungary and that the persecution they face would shock the conscience or be fundamentally unacceptable to Canadian society.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-32", + "id": "scc-7899-35", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 75–77", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 58", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "In Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 433 D.L.R. (4th) 157 (Civil Liberties) the Ontario Court of Appeal considered a constitutional challenge to sections 31-37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The Court held that the provisions, which confer discretion on the administrative head of a federal penitentiary to order administrative segregation of inmates based on a number of factors, infringed section 12 of the Charter. The Court, in analyzing the scheme, considered whether the scheme itself was unconstitutional or whether it simply permitted unconstitutional maladministration.\n\nBefore the Court of Appeal, the Attorney General argued that the Act, properly interpreted, had safeguards that rendered it capable of constitutional compliance (Civil Liberties at para. 102). The applications judge had accepted this argument, and concluded that the legislative scheme, even though it permits prolonged segregation, would not “inevitably result in the treatment of an inmate which is grossly disproportionate to the safety risk the inmate presents” [emphasis added] (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491, 140 O.R. (3d) 342 at para. 269).\n\nThe Ontario Court of Appeal disagreed. It held, in part because the discretion granted under the Act only required the institutional head to “consider” the inmates’ health prior to making segregation decisions, that it was “not impossible” the legislation’s application could result in grossly disproportionate treatment (at paras. 105, 110, 113). Based on this and other factors, the Court found the legislation to infringe section 12.", - "current_to": "2020-08-07", + "text": "In my view, the Minister applied incorrect legal principles and acted unreasonably in reaching his conclusions. His decision in this case related to the surrender for extradition of refugees to the country they fled. The Minister’s approach to the exercise of his powers, in my respectful view, failed to give sufficient weight or scope to Canada’s non-refoulement obligations in light of which those powers must be interpreted and applied. While the mandatory grounds for refusal set out in s. 44 must be considered as a whole, the most relevant provision in this case is the second branch of s. 44(1)(b) set out in the closing words of that subsection. This provision was included in the EA in part to give effect to Canada’s non-refoulement obligations under the Refugee Convention in the extradition context. While the Minister considered the appellants’ status as refugees and examined current conditions in Hungary, his approach in practical terms gave their refugee status no weight and took too narrow a view of Canada’s non-refoulement obligations. The Minister in my respectful view applied incorrect legal principles by imposing too high a threshold for determining whether the appellants would face persecution on their return and, by placing the burden of proof on this issue on the appellants notwithstanding the earlier finding that they were refugees. My reasons for these conclusions follow. (2) Grounds for Refusal of Extradition", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-33", + "id": "scc-7899-36", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 78–79", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 59–60", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "For the reasons I have given, I do not agree that the litmus test for constitutionality is that it must be impossible to exercise discretion in an unconstitutional manner. The word “consider”, if one follows the reasoning of the Ontario Court of Appeal, is not to be read in a manner that is consistent with the Charter. However, this is the opposite of what the Supreme Court, from Slaight, through to Ferguson and Little Sisters and beyond, has instructed. A statutory grant of discretionary power should be read to require that it be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in which case the statutory grant itself may be subject to Charter challenge (Slaight at 1078). In this case, the statutory grant of discretionary power uses the word “consider”, an open-ended grant of discretion. Far from precluding the decision maker from having regard to Charter standards when assessing the appropriateness of detention, it requires it.\n\nThe guidance arising from Slaight, Ferguson and Little Sisters directly applies to and disposes of the appellants’ argument that the legislation is defective because it does not expressly prohibit detention when removal is not reasonably foreseeable. There is no proposition of law that legislation, to pass constitutional muster, must exclude all possibility of unconstitutional exercises of discretion. If that were the case, the Supreme Court would have been mistaken in Charkaoui when it determined that the remedy for an immigration detention beyond a permissible length lay in section 24(1) (at para. 123).", - "current_to": "2020-08-07", + "text": "In my view, this case turns on the interpretation and application of s. 44 of the EA . For the purposes of this appeal, there are three key interpretative issues about s. 44 which must be resolved: (1) What is the most pertinent ground under s. 44 where, as here, the Minister is deciding whether to surrender a person with refugee status? This turns on whether the protection afforded by s. 44(1)(b) is available only in relation to the risk of prejudice resulting from the prosecution or punishment of the person sought or whether it applies to prejudice resulting from discrimination generally; (2) Does a person with refugee status in Canada meet the threshold for invoking this protection? and (3) Who bears the onus of proof that the risk exists? To address these issues, I will first place s. 44 in the context of the extradition process and explain how it interacts with the refugee determination process. I will then turn to a detailed discussion of the purpose of s. 44 and conclude with my analysis of these three interpretative issues. (a) Section 44 in Context\n\nExtradition is mainly an executive branch function stemming from international agreements between states: United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 27. The EA ’s main purpose is to provide the means which give effect to Canada’s obligations in this regard. Under the EA, the Minister of Justice is responsible for the implementation of extradition agreements, dealing with extradition requests and generally for the administration of the EA : s. 7.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-34", + "id": "scc-7899-37", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 80–81", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 61–62", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The Charter does not require that the possibility of maladministration pursuant to a statutory grant of discretion be eradicated from statutes. Rather, the Charter requires that discretion be guided by objective criteria that are capable of identification, articulation and judicial supervision. This is readily demonstrated by three analogous situations: section 24(2) of the Charter, pre-trial detention or bail provisions, and the provisions of the Criminal Code dealing with release pending appeal of a conviction. A comparative review of the broad discretion granted under these provisions demonstrates that the discretion to detain under section 58 of the IRPA and section 248 of the Regulations is constitutionally compliant.\n\nIn Mills v. The Queen, [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 (Mills), McIntyre J. commented on section 24(2) of the Charter and the authority of a court to grant any remedy which it considers “appropriate and just in the circumstances”, and concluded that it was “difficult to imagine language which could give the court a wider and less fettered discretion” (at 965). Nonetheless, section 24(2) was “an acceptable statutory standard to overcome vagueness” (R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (Ont. C.A.) at 115 (Farinacci)).", - "current_to": "2020-08-07", + "text": "Charron J. recently outlined the scheme of the act in Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170. I will not repeat it in detail here other than to briefly outline the three phases of the extradition process under the EA .\n\nIn the first phase, the Minister considers an extradition request and decides whether to proceed with it. If he decides in favour of proceeding, he issues an authority to proceed. Where, as here, extradition to face trial is sought, the EA simply requires the Minister to be satisfied that the conduct described in the extradition request is criminal in the foreign jurisdiction and that the associated penalty meets the threshold established by s. 3(1)(a) (of at least two years or as specified in the relevant treaty). There is no reference to the immigration status of the person in relation to the Minister’s discretion to issue the authority to proceed.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-35", + "id": "scc-7899-38", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 82–83", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 63–64", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The circumstance of bail pending appeal also illustrates the point that broad statutory language will not offend constitutional standards where it is capable of judicial definition. In Farinacci, the Ontario Court of Appeal considered the constitutionality of subsection 679(3) of the Criminal Code, which leaves to appellate courts to determine whether detention pending appeal is “necessary in the public interest.” Citing Mills, Arbour J.A. concluded that the discretion to balance the public interest and public safety was not vague or unfettered (at paras. 114-115).\n\nThe discretion conferred by the Criminal Code provisions in respect of initial show-cause hearings and bail review hearings also serves as a useful comparator against which the discretion granted under section 248 of the Regulations can be tested. These provisions confer a broader and vaguer discretion on the judge or justice of the peace at the initial show cause hearing than the detention provisions of the IRPA. They too have survived constitutional challenge.", - "current_to": "2020-08-07", + "text": "The authority to proceed authorizes the Attorney General, acting on behalf of the extradition partner, to initiate extradition proceedings to seek the order of a superior court judge for the committal of the person sought. The process thus moves into its judicial phase. The function of an extradition hearing is to determine whether the domestic component of double criminality is met (i.e., if the conduct had occurred in Canada, it would have been an offence with the requisite punishment) as required by s. 3(1) (b) of the EA . The judge is required to order committal of a person sought for prosecution if there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner: s. 29(1)(a). Nothing in the EA specifies that the role of the extradition judge is affected by the fact that the person sought is a refugee.\n\nFollowing committal, the matter reverts to the Minister for the third phase of the process. It is at this point which he exercises his power under s. 40 of the EA to surrender, or to refuse surrender, the person sought to the extradition partner. This is the phase which is in issue in this case. At the surrender stage, the extradition process is essentially political in nature; the Minister must take into account the requirements of good faith and honour of Canada in responding to the request under an extradition treaty and must weigh the political and international relations ramifications of the decision whether or not to surrender.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-36", + "id": "scc-7899-39", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 84–85", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 65–66", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "As under the IRPA, under subsection 515(1) of the Criminal Code release is the default outcome at the initial bail hearing (R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 at para. 1). Mirroring the language and structure of section 58 of the IRPA and section 248 of the Regulations, subsection 515(1) states that the accused shall be released unless the prosecutor can show cause why the accused should be detained or released under conditions. Some of the grounds under which a justice may deny bail mirror the grounds for detention under the IRPA scheme. In order for a justice of the peace or a judge to order pre-trial detention, the Crown must establish that there is a flight risk or that detention is necessary for the protection or safety of the public (Criminal Code, s. 515(10)(a) and (b)).\n\nOther grounds bear no resemblance. In contrast to the immigration detention regime, paragraph 515(10)(c) of the Criminal Code grants a right to detain if the judge is of the view that “detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances” surrounding the offence. The exercise of that discretion is informed by a number of statutory criteria, but no instruction is given as to how these criteria are to be weighed or how they relate to the grounds of detention (see, e.g., R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (St. Cloud)). These are the same criticisms that the appellants make of the immigration detention regime.", - "current_to": "2020-08-07", + "text": "In general, the power to surrender is discretionary; as s. 40(1) provides, the Minister “may . . . order that the person be surrendered to the extradition partner”. However, this discretion to order or to refuse surrender is structured and, in some circumstances, constrained by the other provisions of the statute, the applicable treaty and the Charter . The statute sets out discretionary grounds on which the Minister may refuse surrender in s. 47. It also sets out mandatory and qualified mandatory grounds of refusal in ss. 44 and 46. Section 44, as noted, is most relevant to this appeal and I will return to it in a moment.\n\nThe refugee determination process is not expressly mentioned in the EA , other than in s. 40(2). It provides that, before ordering the surrender of “a person who has made a claim for refugee protection”, the Minister of Justice must consult with the Minister responsible for the IRPA : s. 40(2). Note that the provision refers to those who have claimed refugee protection; it does not refer to those who, like the appellants, have been granted refugee protection. It follows that, in the case of a person with refugee status, s. 40(2) does not require the Minister to consult with the MCI. However, it has been held that the provision does not preclude the Minister from doing so: see Hungary (Republic) v. Horvath, 2007 ONCA 734, 65 Imm. L.R. (3d) 169, at paras. 16-18, leave to appeal refused, [2008] 1 S.C.R. ix. Moreover, the Minister took the position in oral submissions before us that such consultation is required by virtue of s. 7 of the Charter when he considers the surrender of a refugee. I agree that such consultation must occur when the surrender decision concerns a person with refugee status.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-37", + "id": "scc-7899-40", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 86–87", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 67–68", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "In respect of certain offences, there is a reverse onus at the initial show cause hearing on the accused to demonstrate that they should be released. The reversal of onus is constitutional (R. v. Morales, [1992] 3 S.C.R. 711, 144 N.R. 176). In contrast, there are no reverse onus provisions under the IRPA and the onus is always on the Minister to justify detention at each and every detention review.\n\nBail reviews under sections 520 and 521 of the Criminal Code are distinguishable from the current case. They are not de novo hearings and a detention or release order is only set aside where admissible new evidence shows a material or relevant change in circumstances, where there has been an error of law or where the decision is clearly inappropriate (St. Cloud at paras. 6, 94, 110, 120-121, 139). In the last of these situations, “a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision” (St. Cloud at para. 6). In sharp contrast to bail review, and as will be discussed, each and every immigration detention review is a fresh, de novo determination of whether detention is warranted.", - "current_to": "2020-08-07", + "text": "Although there are no other express references to refugees in the EA , it does provide for protections of persons who fear abusive treatment, persecution or torture in the requesting state. The most relevant provision in this regard is s. 44 which sets out mandatory reasons for refusal of surrender. I turn now to a detailed examination of this key provision. (b) Section 44 — General Considerations\n\nUnder s. 44(1) of the EA , the Minister must refuse to make a surrender order if “satisfied” that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons. Section 44(1) reads: 44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-38", + "id": "scc-7899-41", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 88–90", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 69–70", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Whether to order the pre-trial release of an accused involves a delicate balancing of all of the relevant circumstances (St. Cloud at para. 6). The same is true for whether to order detention pending deportation. As McLachlin C.J.C. noted in Charkaoui, the section 248 criteria—rather than being a source of some deficiency—are the guarantors of constitutional compliance (at paras. 110-117). The section 248 factors are “prescribed” factors which “must” be taken into account and ensure that extended periods of detention do not violate the Charter (paras. 109-123). The discretion the factors confer is precisely what ensures sensitivity to the context and circumstances of the individual case—a requirement under Charkaoui for constitutional prolonged detention (at para. 107).\n\nWhat are the defining characteristics of a detention review that complies with the Charter and administrative law? This engages substantive legal questions concerning the need for a nexus to an immigration purpose, compliance with sections 7, 9 and 12 of the Charter, the burden of proof, the relevance of previous detention decisions, and the content of procedural fairness.\n\nThe factors in section 248 of the Regulation, as law, must be followed. But on top of that, in order for continued detention to be legal under IRPA, there must be a nexus between detention and an immigration purpose. If that is missing, detention under IRPA is no longer possible.", - "current_to": "2020-08-07", + "text": "These mandatory reasons for refusal of surrender prevail over provisions of an extradition treaty. This is apparent for two reasons. The use of the mandatory language “shall refuse to make a surrender order” leaves the Minister no discretion to depart from statutory language to give effect to a treaty obligation. Moreover, where Parliament intended treaty obligations to prevail over the statutory grounds for refusal of surrender, this is specifically provided for as it is in s. 45(1) and (2): see Robert J. Currie, International & Transnational Criminal Law (2010), at pp. 467-68.\n\nAs the exercise of the Minister’s power to surrender implicates the liberty and in some cases the security of the person sought, the Minister owes a duty of fairness both at common law and in accordance with the principles of fundamental justice under s. 7 of the Charter . While we are not called on in this case to address the precise ambit of this duty of fairness, the Court has affirmed that it generally includes adequate disclosure of the case against the person sought, a reasonable opportunity to respond to it and a reasonable opportunity to state his or her own case: see, e.g., United States of America v. Whitley (1994), 119 D.L.R. (4th) 693 (Ont. C.A.), at p. 707, aff’d [1996] 1 S.C.R. 467.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-39", + "id": "scc-7899-42", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 91–93", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 71", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Once again, the Supreme Court has already gone some way towards giving us guidance on this. Detention in this context is available only where it is reasonably necessary for immigration purposes: Charkaoui at para. 124, citing R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.) and Zadvydas v. Davis, 533 U.S. 678 (2001). Absent a “possibility of deportation”, detention in this context is no longer possible: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56.\n\nIn assessing the presence of an immigration nexus, Charkaoui tells us that detention may be lengthy and it may be indeterminate. Charkaoui instructs that length itself is not the only relevant metric, nor is the fact that the date of removal is unknown; indeed, if the date of removal were known, it is doubtful that the parties would be before the court. When examining the constitutionality of indeterminate detention the question is whether removal, and not the precise date on which removal will occur, remains a possibility: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department.\n\nThe appellants contend that the test for a nexus to an immigration purpose is whether removal is reasonably foreseeable. I do not agree that this is the test. There are problems in this, not the least of which is that it is not the test established by the Supreme Court of Canada, which is that removal be a possibility (Charkaoui at 125-127). As noted, if Charkaoui is read properly, detention is warranted where it is “reasonably necessary” and removal “a possibility.” The Court makes no mention of a test of foreseeability.", - "current_to": "2020-08-07", + "text": "The orientation of s. 44 is the protection of human rights. It is therefore not surprising that, as LeBel J. pointed out in Lake, at para. 24, there is overlap between the provisions of s. 44 and the Charter . While s. 44(1)(a) is not limited to conduct that would constitute a breach of the Charter , it is nonetheless the case that where surrender would be contrary to the principles of fundamental justice, it will also be unjust and oppressive within the meaning of s. 44(1)(a). Where extradition is sought for the purpose of prosecuting* an individual on the basis of a prohibited ground as contemplated by the first branch of s. 44(1)(b), ordering surrender will be contrary to the principles of fundamental justice. It is also not surprising that there is some overlap among the grounds of refusal in ss. 44(1)(a) and (b). The grounds set out in s. 44(1)(b) focus on the conduct of the requesting state. They may be viewed as specific examples of situations in which the surrender would be unjust and oppressive and therefore, in those situations, as structuring and narrowing the Minister’s consideration and weighing of competing objectives and concerns that go into the broad assessment of whether surrender would be unjust and oppressive.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-40", + "id": "scc-7899-43", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 94–95", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 72", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Reasonable foreseeability, on its own, offers no clear guidance to the factors, considerations or evidentiary thresholds relevant to its application. It raises the questions “foreseeable by whom?” and “reasonable according to whom?” and, perhaps for these reasons, as the habeas cases which have adopted the test demonstrate, it leads to inconsistent results. The rule of law mandates, and the jurisprudence on bail demonstrates, that in matters where liberty interests are engaged, discretion should, to the extent possible, be exercised on clear and discernable criteria, as consistently as possible. “Reasonable foreseeability” does not do this. It also invites the unhelpful exercise of assessing what is “reasonable” in the context of countries with legal, political and structures of public administration vastly different than ours and with which judges have no experience.\n\nThe focus of the “possibility” test is, to the contrary, on the existence of objective, credible facts. The decision maker must be satisfied, on the evidence, that removal is a possibility. The possibility must be realistic, not fanciful, and not based on speculation, assumption or conjecture. It must be grounded in the evidence, not supposition, and the evidence must be detailed and case-specific enough to be credible. In my view, as far as a nexus to an immigration purpose is concerned, despite the different wording, there is a general congruence between the detention review and habeas tests.", - "current_to": "2020-08-07", + "text": "The Court has discussed s. 44(1)(a) most recently in Fischbacher, at paras. 37-39. Under that paragraph, the Minister is required to undertake “a balancing of all the relevant circumstances, weighing factors that militate in favour of surrender against those that counsel against” (para. 38). It is generally accepted that the Minister must have a wide measure of appreciation of what circumstances are “unjust or oppressive” and that the person sought bears the burden of demonstrating that such circumstances exist: see, e.g., Fischbacher, at para. 37; Lake, at paras. 38-39; Pacificador v. Canada (Minister of Justice) (2002), 166 C.C.C. (3d) 321 (Ont. C.A.), at para. 55.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-41", + "id": "scc-7899-44", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 96–98", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 73", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The foregoing concerns only the starting requirement that there be a nexus to an immigration purpose, in other words whether continued detention can be ordered. But just because it can be ordered does not mean it should. It is at a second stage, namely whether detention should be ordered, that proximity or remoteness of a removal date is engaged. The length of the detention to date and the conditions of the detention are also relevant to that question, i.e., the judge’s discretion, informed by the Charter, as to whether continued detention should be ordered. There may be circumstances where a detention, by virtue of its duration or the conditions of detention affects the liberty interest of the detainee so significantly that the Charter rights of the detainee are offended and release is warranted. We leave definitive consideration of this for a future day on the specific facts of a live case.\n\nI offer a few further comments to guide that consideration.\n\nWhile duration of the detention matters, duration alone is instructive of nothing, and, as several habeas corpus cases that follow Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401 (Chaudhary)) demonstrate, a narrow focus on duration leads to a range of subjective and inconsistent decisions (see, e.g., Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; Canada (Minister of Citizenship and Immigration) v. Dadzie, 2016 ONSC 6045, [2016] O.J. No. 5185; Scotland v. Canada (Attorney General), 2017 ONSC 4850, 52 Imm. L.R. (4th) 188; Ali v. Canada (Attorney General), 2017 ONSC 2660, 26 Admin. L.R. (6th) 78).", - "current_to": "2020-08-07", + "text": "The conduct of the requesting state may be considered under s. 44(1)(a) as well as under s. 7 of the Charter . The concern of both provisions is not only the act of extradition, but the potential consequences of extradition for the person sought: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 60. The analysis under s. 7 in this context asks whether extraditing the person sought to face those consequences offends the principles of fundamental justice: Burns, at para. 59. Section 44(1)(a) has thus been invoked where the person sought contested his surrender on the basis that he would be persecuted by virtue of his race or sexual orientation (United States of America v. Pannell, 2007 ONCA 786, 227 C.C.C. (3d) 336; United States of Mexico v. Hurley (1997), 35 O.R. (3d) 481 (C.A.)) or that the delay in seeking extradition and the potential punishment and other humanitarian circumstances combined to make surrender unjust and oppressive (United States v. Bonamie, 2001 ABCA 267, 96 Alta. L.R. (3d) 252). In this context, it has been held that where the person sought alleges that he or she will face persecution so that surrender would be contrary to the principles of fundamental justice and therefore unjust and oppressive, he or she bears the burden of proof on the balance of probabilities that such persecution will be suffered and that it would shock the conscience of Canadians: see, e.g., Hurley, at paras. 51-59. I mention this not to express my view on this approach but simply to contrast the broad balancing called for under s. 44(1)(a) with the much more tightly focussed, specific considerations set out in s. 44(1)(b).", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-42", + "id": "scc-7899-45", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 99–101", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 74–77", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Detention cannot be ordered on the basis of non-cooperation alone—to do so would be contrary to sections 7 and 9. But where the impasse in effecting removal is disputed identity and the detainee has refused to cooperate in confirming their identity, delays in removal cannot count against the Minister. Release in these circumstances would encourage detainees to be less than forthcoming. Where a detainee is uncooperative, detention cannot be classified as indefinite because it is within the detainee’s control to change their destiny. That said, there will be cases where the receiving country alone disputes identity. Care must be taken not to attribute this to the detainee, who should not bear the burden of the country’s recalcitrance to confirm identity.\n\nThe presence of good faith is necessary. In assessing the Ministers’ efforts to effect removal, attention should be paid to all steps taken or that could reasonably be taken to procure the necessary travel documents, and whether the CBSA has actively used the time between periods of detention and release to advance the detainee’s removal.\n\nAs the facts of this case amply demonstrate, Canada’s efforts at removal may be frustrated by the receiving country. Even if a detainee consents to removal, removal depends on the receiving country issuing the necessary travel documents.", - "current_to": "2020-08-07", + "text": "Under s. 44(1)(b), the Minister is concerned with the specific situations in which the requesting state seeks to prosecute or punish the person sought for a discriminatory purpose or where that person’s position may be prejudiced for a discriminatory reason. In contrast to the broad ground of “unjust or oppressive” in s. 44(1)(a), s. 44(1)(b) sets out specific grounds on which surrender must be refused.\n\nVirtually all of the case law approaches the risk of discriminatory treatment in the requesting state through the lens of s. 44(1)(a). This is likely because on first reading, s. 44(1)(b) seems to be concerned only with prosecution or punishment for a discriminatory purpose: see Pannell, at para. 29. For reasons I will develop in a moment, I think that is too narrow a reading of s. 44(1)(b).\n\nI turn now to a detailed analysis of s. 44(1)(b). I will first set out the purpose of the provision and then turn to the three interpretative issues to which the section gives rise: (1) whether the prejudice must be related to the prosecution or punishment of the person sought; (2) whether a person with refugee status in Canada meets the threshold for invoking this protection; and (3) who bears the onus of proof that the risk exists. (c) The Purpose of Section 44(1) (b) of the Extradition Act\n\nIt is critical to understand that s. 44(1)(b) is Canada’s primary legislative vehicle to give effect to Canada’s non-refoulement obligations when a refugee is sought for extradition. This appears not only from the text of the section, but also from its origins and the debates and hearings at the time of its adoption.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-43", + "id": "scc-7899-46", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 102–105", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 78", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The conduct of the receiving country may explain the delay. Canada has the tools necessary to obtain cooperation, whether through escalating levels of diplomatic and political pressure, negotiated bilateral return agreements or placing visa or other entry requirements on nationals from the delinquent country. The question in these circumstances, where there is an impasse, is whether there is a proposed demarche or next step that is likely to advance the process. In other words, does the Minister have a plan to circumvent the impasse and is there a real possibility that it will lead to removal?\n\nThe variable conditions of detention (in a maximum security facility instead of an IHC) are not pertinent to whether detention is necessary to achieve removal. The conditions of detention are relevant to the legality of detention and the consideration of proportionality, whether under section 12 of the Charter or under judicial review.\n\nThe appellants maintain that because the ID lacks jurisdiction to control the conditions of detention when the detainees are in provincial institutions, the ID cannot ensure proportionality between detention and the reasons for detention. Detention is therefore arbitrary and results in cruel and unusual punishment. In the same vein, the appellants contend that the absence of an explicit power of the ID to consider “harsh or illegal” conditions of detention undermines the regime’s constitutionality.\n\nThis argument fails, both on the law and the evidence.", - "current_to": "2020-08-07", + "text": "The non-refoulement provisions in Article 33 of the Refugee Convention have had considerable impact on extradition law. Extradition statutes and treaties commonly contain provisions inspired by the Refugee Convention’s protection against refoulement. The formulation adopted by the European Convention on Extradition, Eur. T.S. No. 24 (“Extradition Convention”), has been influential. Article 3(2) of that Convention stipulates mandatory reasons for refusal of extradition based on non-refoulement as set out in Article 33(1) of the Refugee Convention: Wouters, at p. 137; Goodwin-Gill and McAdam, at p. 258. It provides that extradition shall not be granted “if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-44", + "id": "scc-7899-47", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 106–107", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 79", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "There is a duty on ID members to exercise their discretion in a manner consistent with the Charter (Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 at para. 14 (Thanabalasingham); Sahin at 228-229). As Abella J. observed in Chhina, “[t]he Charter both guides the exercise of discretionary administrative decision making under [the] IRPA and informs our interpretation of the scheme itself” (at para. 128).\n\nAn express power for the ID to consider the nature or conditions of detention is not required (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 78). The ability, indeed obligation, to consider sections 7, 9 and 12 is inherent in the exercise of the discretion concerning whether or not detention is warranted. As a tribunal of competent jurisdiction capable of providing Charter remedies, the ID can order release of a detainee on the grounds that the conditions of detention, on their own or in conjunction with other factors, are disproportionate (Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240 at para. 29; Chaudhary at para. 77).", - "current_to": "2020-08-07", + "text": "The text of Article 3(2) of the Extradition Convention suggests that it has two branches: the first is concerned with prosecution or punishment for a discriminatory purpose as set out in the opening words and the second with more general discrimination that may prejudice the person’s position. The words used in the second branch would be an odd choice if the intention was to limit the meaning of “position” to “position in relation to the prosecution or punishment”. The provision is phrased disjunctively and the word “position” is not explicitly tied back to the prosecution or punishment. The French text of the provision supports even more strongly the view that the person’s “position” is not limited to his or her position in relation to the prosecution or punishment. The second branch in the French text is “ou que la situation de cet individu risque d’être aggravée pour l’une ou l’autre de ces raisons”. The clause is clearly disjunctive and “la situation de cet individu” is not clearly linked to the prosecution or punishment.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-45", + "id": "scc-7899-48", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 108–109", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 80", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "As the Supreme Court has explained, a section 12 issue of “cruel and unusual” treatment is intertwined with section 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty (Charkaoui at para. 96). But, as the Court in Charkaoui noted, it is not the detention itself, or its length, that is objectionable; detention is only cruel and unusual in the legal sense if it violates “accepted norms of treatment” (para. 96). As such, denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrary and support the argument that it is cruel or unusual, but a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual (Charkaoui at para. 96).\n\nContrary to the appellants’ argument, Charkaoui does not stand for the proposition that the body reviewing detention must have control over the location and conditions of detention. To be clear, the Supreme Court said that, for an immigration detention scheme to be compliant with sections 7 and 12 of the Charter, it must provide a mechanism for review of detention that permits the reviewing body to set conditions that would neutralize the risk upon release, and that conditions of release must be subject to ongoing, regular review (Charkaoui at paras. 107, 117, 121). The Supreme Court’s focus in Charkaoui is on jurisdiction to impose conditions of release and on the detainee’s opportunity to challenge those conditions, not on the place and conditions of detention.", - "current_to": "2020-08-07", + "text": "Article 3(2) of the Extradition Convention was substantially adopted by Article 3(b) of the United Nations’ Model Treaty on Extradition (1990): Bert Swart, “Refusal of Extradition and the United Nations Model Treaty on Extradition” (1992), 23 Neth. Y.B. Int’l Law 175, at p. 194. The United Nations Office on Drugs and Crime’s Revised Manuals on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters (2002), at para. 47, notes that this formulation, which is inspired by the principle of non-refoulement contained in the Refugee Convention, has been used, sometimes in a modified form, in extradition treaties around the world. As the Manual puts it, this clause “enables a party to refuse extradition if it determines that the extradition request is discriminatory in its purpose or if the subject of the request may be prejudiced because of one of the enumerated discriminatory grounds” (emphasis added).", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-46", + "id": "scc-7899-49", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 110–111", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 81", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 (Boudreault), the Supreme Court reiterated that demonstrating a breach of section 12 is a high bar: the treatment or punishment must be more than merely disproportionate or excessive—it must be so excessive as to “outrage standards of decency” and be “abhorrent or intolerable” to society (at para. 45; see also R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 at para. 24). It is only in very rare and unique occasions that a treatment or punishment will infringe section 12, as the test is “very properly stringent and demanding” (Boudreault at para. 45; see also R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 at para. 26; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, 121 N.R. 198 at 1417).\n\nAgainst this jurisprudential backdrop, including Charkaoui, many of the appellants’ arguments regarding the conditions of detention were dismissed by the Federal Court. No reviewable error in that finding has been demonstrated. The evidence of conditions of detention falls far short of the threshold of cruel and unusual punishment set by the Supreme Court, and does not support the broad declaration sought by the appellants.", - "current_to": "2020-08-07", + "text": "Section 44(1) (b) of the EA is inspired by the provisions in the Extradition Convention and the Model Treaty on Extradition. This is clear from the similarity of their texts. The wording of the closing section of all three provisions is virtually identical. The Extradition Convention, as noted, provides in Article 3(2) that extradition shall not be granted “if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”. Article 3(b) of the Model Treaty on Extradition, which was based on the Extradition Convention, provides that extradition shall not be granted “[i]f the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinions, sex or status, or that that person’s position may be prejudiced for any of those reasons”. Section 44(1) (b) of the EA provides that the Minister “shall refuse to make a surrender order if the Minister is satisfied that . . . the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons”. The adoption of this language in s.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-47", + "id": "scc-7899-50", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 112–113", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 81–82", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellants rely on the Ontario Court of Appeal decision P.S. v. Ontario, 2014 ONCA 900, 379 D.L.R. (4th) 191 (P.S.). In P.S., the Court found that non-punitive detention under the Mental Health Act, R.S.O. 1990, c. M-7 did not comply with section 7 of the Charter because the Consent and Capacity Board’s powers were inadequate. The review board lacked the jurisdiction to supervise the security level and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests (P.S. at para. 115). The objective of reintegrating patients into the community was frustrated by the fact that the Board could not direct that certain types of treatment or therapies be made available to the detainees. The purpose of detention was to facilitate re-integration and, without those tools, detention was not linked to the legislative objective.\n\nUnder the IRPA, inadmissible foreign nationals are detained in order to ensure that they do not flee or harm the public before they are deported from the country. The purpose of detention is to facilitate public safety and removal. Unlike the Consent and Capacity Board, the ID has all the tools necessary to effect these objectives and, importantly, the jurisdiction to impose conditions on release, which reflects an appropriate balance between the objectives of the Act and the detainees’ liberty interest. The problem in P.S. was that the legislative tools granted to the Board were insufficient in relation to its objectives. Here, in contrast, it is argued that the powers of the ID are overbroad in relation to the objective. The case is of no assistance.", - "current_to": "2020-08-07", + "text": "44(1)(b) makes clear that it was directed to the same purpose as the comparable provision in the Extradition Convention and the Model Treaty on Extradition: fulfilling non-refoulement obligations in the extradition context. It is reasonable to infer that this provision was adopted to serve the purpose identified for its counter-part in the Extradition Convention and Model Treaty on Extradition, protection against prejudice in the requesting state, particularly when extradition would constitute a violation of the requested state’s obligations in relation to non-refoulement.\n\nBoth the English and French texts of s. 44(1)(b) support the view that it contains two branches and that the “position” of the party is not limited to his or her position in relation to prosecution or punishment. The English text, “or that the person’s position may be prejudiced” is, like the Extradition Convention, disjunctive and does not expressly link the person’s “position” to the prosecution or punishment. The French text, “ou il pourrait être porté atteinte à sa situation” suggests more strongly that “sa situation” is not limited to the prosecution or punishment. The use of the general expression “il pourrait” clearly does not refer to the prosecution or punishment and seems an unlikely choice of words had such a limitation been intended.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-48", + "id": "scc-7899-51", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 114–117", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 83", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "More relevant is the Ontario Court of Appeal decision in Toure v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 681, 40 Admin. L.R. (6th) 261 (Toure).\n\nIn Toure, the Ontario Court of Appeal took no issue with the CBSA criteria that govern the location of detention, and held that the location of detention was a proper issue for immigration detainees to raise with the CBSA (at para. 72). If the location of detention is not consistent with how a detainee fits within the CBSA's own criteria, the decision is the proper subject of judicial review in the Federal Court (at para. 72). I agree with these observations.\n\nThe CBSA’s decision to stream a detainee into a provincial institution as opposed to an IHC is a reviewable decision or order under section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7. Similarly, a detention order that does not take into account the proportionality of the risk and the conditions of detention, can be tested in the Federal Court, on both Charter and administrative law principles. A decision that fails to consider the proportionality between the risk and the measures to mitigate that risk will be set aside, as will a decision that reached an unreasonable conclusion in that regard.\n\nIn any event, as the Federal Court noted, both the federal and Ontario statutes governing the detention of persons in correctional facilities state that any designation of a particular penitentiary in a warrant of committal is of no force or effect (Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 11; Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 17; see Federal Court reasons at para. 136). Neither the appellants nor the interveners point to authorities which deem those provisions to be unconstitutional.", - "current_to": "2020-08-07", + "text": "The co-relation between s. 44(1)(b) and non-refoulement is explicit in the debates and discussions leading to its enactment. There were references to the origin of the provision in the Model Treaty on Extradition (which was modelled on the Extradition Convention) and to the fact that the draft Bill adopted the listed grounds of discrimination from the Refugee Convention’s refugee definition: see, e.g., the Hon. Peter Adams, Parliamentary Secretary to the Leader of the Government, House of Commons Debates, vol. 135, No. 162, 1st Sess., 36th Parl., November 30, 1998, at pp. 10591-92; the Hon. Réal Ménard, House of Commons Debates, at p. 10595; Mr. Don Piragoff, General Counsel, Criminal Law Policy Section, Department of Justice, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights, November 5, 1998, at 17:10.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-49", + "id": "scc-7899-52", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 118–120", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 84–85", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The detention review scheme established by Parliament imposes a continuing and overarching legal burden on the Minister to establish that detention is lawfully justified according to section 58 of the IRPA, section 248 of the Regulations, and the Charter. The Minister bears the legal burden of establishing, on a balance of probabilities, that there are grounds for detention. If the Minister succeeds in that, the legal burden remains on the Minister to establish, in light of the section 248 criteria, that detention is warranted. This burden rests on the Minister throughout the detention review and re-surfaces every 30 days.\n\nThere are only two burdens in Canadian law: the legal or persuasive burden, sometimes called the onus of proof, and the evidentiary burden.\n\nWhile the terms legal and persuasive burden are interchangeable, “legal burden” is arguably more apt a term than “persuasive burden” because it emphasises the obligation on the asserting party, the plaintiff or the Crown, to establish the requisite substantive factual elements of a cause of action or offence (R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 10-12). Those facts must be established on a balance of probabilities in a civil matter and beyond a reasonable doubt in a criminal proceeding (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 40-41; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para. 94). Importantly, barring a statutory or common law rule, the legal burdens associated with a party never shift (Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman, & Bryant’s The Law of Evidence in Canada, 5th ed. (Toronto, ON: Lexis Nexis, 2018) at § 3.46 (The Law of Evidence in Canada)).", - "current_to": "2020-08-07", + "text": "I earlier referred to the testimony of Gerry Van Kessel. His evidence makes it particularly clear that the EA was intended to oblige the Minister to refuse extradition where the person sought fell within the refugee definition. As Mr. Van Kessel put it during his testimony: Bill C-40 [which became the 1999 Extradition Act ] changes will legislate the rules for the interaction between the extradition process and the refugee determination process for the first time. . . . Bill C-40 also says protection [i.e. of refugees] remains an issue and a concern that the Minister of Justice needs to deal with, and that is also dealt with in Bill C-40. The choice made there is that the Minister of Justice, before making a final decision on extradition or surrender order, shall refuse to make a surrender if the refugee definition applies . . . . [Emphasis added.] (Testimony before the Standing Committee on Justice and Human Rights, November 17, 1998, at 11:45 and 12:05)\n\nThis comment relates to what is now s. 44(1) (b) of the EA as it is the only provision among the grounds for refusal of surrender that lists the prohibited grounds of discrimination which will give rise to refugee protection. (I note that the draft Bill originally listed only grounds that very closely mirrored those set out in the refugee definition in the Refugee Convention, and that the list of prohibited grounds was expanded during Parliamentary consideration of the Bill to include the prohibited grounds of discrimination in the Charter and the Canadian Human Rights Act , R.S.C. 1985, c. H-6 : see House of Commons, Sixteenth Report, Standing Committee on Justice and Human Rights, November 23, 1998, at clause 44.)", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-50", + "id": "scc-7899-53", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 121–122", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 86–88", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "If the evidence establishes a ground for detention under the Act and suggests that detention is justified under section 248 of the Regulations, it may be in a detainee’s interest to introduce evidence in favour of release. This is not a shifting of the legal burden. It is, rather, descriptive of the tactical decision whether to lead evidence to prevent a potentially unfavourable outcome (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193 at para. 53; The Law of Evidence in Canada at 116, § 3.56; Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289 at 329-330; see also R v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 50). The appellants are right to point to some passages in Federal Court detention reviews that do not respect the difference. The distinction is important, as is the language used. The two ought not be confused.\n\nThe legal burden does not shift or change should the Minister establish a prima facie case of grounds for detention. The detainee is not required in law to do anything. Establishing grounds for detention does not mean that a detention order should issue. It simply means that there is a basis to consider making a detention order. Even when no evidence is offered by the detainee in response, the legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the section 248 factors. A detainee’s decision to introduce evidence in response is entirely tactical.", - "current_to": "2020-08-07", + "text": "This clear link between s. 44(1)(b) and Canada’s international obligations under the Refugee Convention has important implications for its interpretation and application in the refugee context. The Refugee Convention has an “overarching and clear human rights object and purpose”, and domestic law aimed at implementing the Refugee Convention, such as s. 44(1)(b), must be interpreted in light of that human rights object and purpose: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 57. Section 44(1)(b), when applied to the situation of a refugee whose extradition is sought, must be understood in the full context of refugee protection. (d) The Three Interpretative Questions\n\nI turn now to the three interpretative issues on which the appeal turns. (i) Prejudice and the Prosecution\n\nAs noted, s. 44(1)(b) provides that the Minister shall refuse surrender if satisfied that “the request for extradition is made for the purpose of prosecuting or punishing the person by reasons of their race [etc.] . . . or [if] the person’s position may be prejudiced for any of those reasons”. The question arises whether s. 44(1)(b) is concerned only with prejudice in the context of the prosecution. The first part of the paragraph appears to be so directed as it relates to prosecutions or punishments with a discriminatory purpose. However, the concluding words of the subsection — “or that the person’s position may be prejudiced for any of those reasons” — are not explicitly limited to prejudice to the person with respect to the prosecution. In my view, for three reasons, the prejudice referred to in these concluding words is not limited to prejudice in the prosecution or punishment.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-51", + "id": "scc-7899-54", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 123–124", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 89–91", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Nor does the legal burden on the Minister change with successive detention reviews. Whether it is the first or the tenth detention review, the Minister must establish on a balance of probabilities that a ground for detention exists, the existence of a nexus to an immigration purpose and the appropriateness of the detention. What may often change with the passage of time is the quantity and quality of evidence required to justify detention. The longer the period of detention, the more time and opportunity the government has had to make the necessary arrangements with the receiving country and to execute removal. With the passage of time, the assertion that removal remains possible requires a more probing inquiry. Reflecting this reality, in Charkaoui, the Supreme Court stated that the burden on the Minister becomes heavier over time (at para. 113); I take the Supreme Court to have been speaking of an evidentiary or tactical burden here, not a persuasive burden.\n\nThe Supreme Court observed in Mission Institute v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at paragraph 40 (Khela) that the shift in onus from the prisoner to the detaining authority is unique to the writ of habeas corpus. But there is no reason why a statutory detention regime cannot achieve the same effect as habeas corpus. Parliament has crafted such a regime here.", - "current_to": "2020-08-07", + "text": "First, as I have discussed earlier, there is strong textual support in both the English and French texts of the Extradition Convention and the EA for the view that the second branch of s. 44(1)(b) is not limited to the position of the person with respect to the prosecution or punishment in the requesting state.\n\nSecond, as a review of the provision’s origins and the Parliamentary record shows, a clear legislative purpose of the provision includes giving effect to Canada’s obligations with respect to non-refoulement. Reading the section as being confined to prejudice in the prosecution or punishment of the refugee would not allow the section to achieve this purpose.\n\nThird, the provisions of the Extradition Convention on which s. 44(1)(b) is based have been interpreted as not being confined to prejudice in the context of prosecution or the imposition of punishment but have also been applied to prejudice resulting from extradition in violation of a refugee’s non-refoulement protection. In short, the direct link between these provisions and the non-refoulement protections in Article 33 of the Refugee Convention has been noted and given effect.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-52", + "id": "scc-7899-55", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 125–127", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 92", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Indeed, the scheme in the IRPA offers procedural and substantive advantages over a habeas corpus application. Properly interpreted, the IRPA requires the Minister to establish afresh the justification for detention every thirty days. The detention review occurs without any action on the part of the detainee, and for the entirety of the inquiry the burden is on the Minister to justify detention. The detainee is not required to do anything, procedurally or substantively. This can be contrasted to an application for habeas corpus where the applicant must initiate the application, establish that they have been deprived of liberty and that there is a legitimate ground to question their detention before the onus shifts to the responding authorities to show that the deprivation was lawful (Khela at para. 30).\n\nThere remain the observations of the Supreme Court in Chhina that the burden on the Minister decreases with time and that the requirement not to depart from prior decisions without clear and compelling reasons leads to self-referential reasoning and, in effect, shifts the onus to the detainee.\n\nChhina must be understood in light of the principles articulated by the Supreme Court in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry). Henry instructs that reasons move along a spectrum—from the ratio, which is binding, to guidance that, although not strictly binding, is expected to be followed, to commentary (at para. 57). The Court’s comments in Chhina on Thanabalasingham fall within the last-mentioned category.", - "current_to": "2020-08-07", + "text": "A succinct discussion of the relationship between Article 3(2) of the Extradition Convention and Article 33(1) of the Refugee Convention may be found in the decision of the Netherlands, Council of State, Judicial Division, in Folkerts v. State-Secretary of Justice (1978), 74 I.L.R. 472. Most relevant for our purposes is the following passage which, quoting from the decision of the State-Secretary, makes two important points. First, the criteria are the same for non-refoulement protection under Article 33 of the Refugee Convention and for protection against discrimination under Article 3(2) of the Extradition Convention. Second, the protection against discrimination under Article 3(2) is not limited to discrimination in the criminal proceedings themselves, but more generally. The report puts it this way at p. 474: As appears from their wording and obvious intent, there is a close relation between [Article 3(2) of the European Convention on Extradition] and Article 33 of the Geneva Convention on the Status of Refugees, in the sense that the criteria for the decision on whether an individual is threatened on account of his race, religion, nationality or political opinion must be considered to be the same in the two provisions. The Refugees Convention does indeed apply to persons subject to forms of persecution other than criminal proceedings (prosecution), whereas a request for extradition can be made only in respect of a criminal investigation or the enforcement of a criminal judgment, though examination of a request for extradition in the light of Article 3(2) of the European Convention on Extradition does allow a judgment on the possibility of persecution other than in the sense of criminal proceedings. [Emphasis added.]", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-53", + "id": "scc-7899-56", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 128–130", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 93–94", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Thanabalasingham does not stand for the proposition that the burden shifts to the detainee. To the contrary, in Thanabalasingham, this Court held precisely the opposite: that “[t]he onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention” (at para. 16). Similarly, contrary to what the Court said in Chhina, in Charkaoui the Supreme Court held that the burden and evidentiary challenges on the Minister increase with the passage of time.\n\nThe Court in Chhina did not conduct a statutory interpretation exercise of the detention provisions in the IRPA, examine Thanabalasingham in depth or reconsider Charkaoui. For these reasons, the observations in Chhina, above, should not be regarded as binding upon us.\n\nThe appellants argue that the scheme is unconstitutional because the collective weight of past decisions to detain creates a strong incentive to defer to those decisions and maintain detention. Once detained, always detained. The appellants say that this flows from the jurisprudence, which requires an ID member to provide “clear and compelling reasons” if they wish to depart from a prior detention decision (Thanabalasingham at para. 10) and the recent observations of the majority of the Supreme Court in Chhina that the ID’s periodic reviews are susceptible to “self-referential” reasoning (see also Chaudhary at paras. 85-88).", - "current_to": "2020-08-07", + "text": "The Swiss Federal Court has taken the same view. In a decision noted by Gottfried Köfner in (1993), 5 Int’l J. Refugee L. 271, the court is reported as saying that art. 3 of the 1957 European Convention on Extradition stipulates not only non-extradition for political offences, but also for reasons concerning the personal situation of the individual to be extradited in the country of origin . . . . Art. 3(2) of the European Convention on Extradition is the concrete expression of the refugee law principle of non-refoulement in the context of extradition law. Both provisions protect persons who are in danger of persecution or punishment for race, religion, nationality or their political opinion. [p. 272]\n\nIt is true that there is English and Australian authority for the view that the protection afforded by the comparable provisions in those jurisdictions is limited to protection against prejudice in the trial or punishment of the person sought: see, e.g., Clive Nicholls, Clare Montgomery and Julian B. Knowles, The Law of Extradition and Mutual Assistance (2nd ed. 2007), at §5.44-5.53; Hilali v. Central Court of Criminal Proceedings No. 5 of the National Court, Madrid, [2006] EWHC 1239 (Admin.), [2006] 4 All E.R. 435 (Q.B., Div. Ct.); Aughterson, at pp. 111-15; Republic of Croatia v. Snedden, [2010] HCA 14, 265 A.L.R. 621. However, this approach reflects significant differences in drafting between those provisions, on one hand, and the Extradition Convention and s. 44(1)(b) on the other.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-54", + "id": "scc-7899-57", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 131–132", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 95–97", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "If this were a consequence of either the statutory scheme or the effect of Thanabalasingham, these arguments would have substance. But they have no foundation, either in the statutory scheme or in the jurisprudence. I have already explained how nothing in the IRPA or the Regulations places an obligation on a detainee to lead fresh evidence between detention reviews in order for the ID to reach a different result. Nothing in the IRPA requires the detainee to demonstrate a change in circumstances, and neither does the jurisprudence.\n\nIn Thanabalasingham, Rothstein J. expressly and unequivocally rejected the argument that the findings of previous members “should not be interfered with in the absence of new evidence” and held that “at each hearing, the Member must decide afresh whether continued detention is warranted” (at paras. 7-8). Guidelines issued on April 1, 2019, by the Chair of the Immigration and Refugee Board pursuant to paragraph 159(1)(h) of the IRPA reinforce this point and align with the instructions of the Federal Court to the ID in Canada (Public Safety and Emergency Preparedness) v. Hamdan, 2019 FC 1129 (Hamdan) (see Immigration and Refugee Board of Canada, Chairperson Guideline 2: Detention (Ottawa: Immigration and Refugee Board of Canada, April 1, 2019)).", - "current_to": "2020-08-07", + "text": "The English provisions focus more specifically on discrimination in the context of the trial and punishment than do the Extradition Convention or s. 44(1)(b). After addressing in s. 13(a) of the Extradition Act 2003 (U.K.), c. 41, extradition sought for a discriminatory purpose, s. 13(b) is directed to situations in which the person sought, if extradited, “might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, [etc.]”. The Australian provision, s. 7(c) of the Extradition Act 1988, No. 4, similarly makes an explicit link between discrimination and prejudice at trial or in relation to punishment: “. . . the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion [etc.]”.\n\nGiven the text and purpose of s. 44(1)(b) and the interpretation which has been given to the Extradition Convention on which it is based, I would read the closing words of s. 44(1)(b) broadly as protecting a refugee against refoulement which risks prejudice to him or her on the listed grounds in the requesting state whether or not the prejudice is strictly linked to prosecution or punishment. (ii) Refugee Status and Invoking the Protection\n\nThis appeal does not call for an exhaustive interpretation of s. 44(1)(b). The question here is the relationship between the conditions giving rise to refugee status and the risk described in s. 44(1)(b). In my view, a person who is a refugee and therefore entitled to non-refoulement protection under the Refugee Convention is entitled to invoke the protection under s. 44(1)(b). This approach is consistent with the text of the provision and achieves its legislative purpose.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-55", + "id": "scc-7899-58", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 133", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 98", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Members of the ID are obligated, under their oath and by law, to consider the circumstances of the particular individual whose detention or liberty is in issue in a fair and open-minded way. Each member is required to undertake their own independent assessment of the case for and the case against detention. Abella J. returns to this point in Chhina, noting that “[t]he integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing” (at para. 127). Abella J.’s dissenting reasons, which were not contradicted by the majority on the point mentioned here, were foreshadowed in Federal Court jurisprudence (see, e.g., Sahin at 228-230; Thanabalasingham at para. 14).", - "current_to": "2020-08-07", + "text": "The Refugee Convention affords refugee protection (subject of course to exclusions) to persons having a “well-founded fear” of being persecuted on the enumerated grounds: Article 1A(2). In Canadian domestic law under s. 95 of the IRPA , a refugee claimant must show that he or she falls within the statutory definition of refugee, which, in the case of Convention refugees, closely tracks the language of the Refugee Convention: s. 96 of the IRPA . Jurisprudence from the Federal Court of Appeal holds that the burden is on the claimant to show that he or she subjectively fears persecution and that this fear is objectively well-founded. The latter condition requires proof that there is a “reasonable chance”, a “reasonable” possibility, or a “serious possibility”: see, e.g., Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at p. 683; Lorne Waldman, Immigration Law and Practice (2nd ed. (loose-leaf)), vol. 1, at §8.91-8.98. My objective is not to reach any firm conclusions about precisely how the test should be framed; the point is simply that under the Refugee Convention and under s. 96 of the IRPA , the refugee claimant has to establish a risk of persecution and does not have to prove on the balance of probabilities that the feared persecution will in fact occur.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-56", + "id": "scc-7899-59", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 134", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 99", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Thanabalasingham creates no special rule for ID reviews. The requirement to give reasons when departing from a prior decision is directed to the well-understood requirement, essential to the integrity of administrative and judicial decision making, that if there is a material change in circumstances or a re-evaluation of credibility, the ID is required to explain what has changed and why the previous decision is no longer pertinent. This reinforces the values of transparency, accountability and consistency. As was explained by the Supreme Court of Canada in Vavilov, the primary purpose of reasons is to demonstrate justification, transparency and intelligibility (at para. 81). To promote “general consistency”, any administrative body that departs from its own past decisions typically “bears the justificatory burden of explaining that departure in its reasons” (at paras. 129-131). Moreover, reasons are the primary mechanism by which affected parties and reviewing courts are able to understand the basis for a decision (at para. 81; see also Canada (Public Safety and Emergency Preparedness) v. Berisha, 2012 FC 1100, [2014] 1 F.C.R. 574 at para. 52).", - "current_to": "2020-08-07", + "text": "The next question is how this approach to refugee protection fits with the Refugee Convention’s protection against refoulement. On an initial reading of the text, the Refugee Convention’s non-refoulement provision, Article 33, does not seem to be exactly aligned with the Convention’s definition of refugee. While the Article 1 definition of refugee speaks of a “well-founded fear of being persecuted” on the prohibited grounds, Article 33 protects against expulsion of a refugee to a place “where his life or freedom would be threatened” on those grounds. The use of the words “would be” in Article 33 may suggest that a probability of persecution has to be shown, while the use of the word “threatened” suggests that, like the definition of refugee, this protection against refoulement is concerned with risk. The different words used in Articles 1 and 33 give rise to the question of whether all persons who meet the definition of refugee in Article 1 (and are not otherwise excluded from refugee protection) are entitled to protection against refoulement under Article 33, or whether some different or higher standard is required to be entitled to that protection. There is a strong case to be made that the thresholds are in fact the same under both provisions. But in any event, the language of s. 44(1)(b) — “may be prejudiced” — demonstrates a clear legislative intent to refer to a risk of prejudice rather than to a more certain standard.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-57", + "id": "scc-7899-60", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 135", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 100–101", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "I note, parenthetically, that the role of reasons when making a decision to depart from a previous decision is no different if habeas corpus is sought. The requirement for clear and compelling reasons does not change with the forum. As Professor Paul Daly observed in his commentary on Chhina, where a habeas corpus application is unsuccessful, a detainee may re-apply, and apply again after that. The provincial superior court hearing the habeas corpus application will be faced with the same challenges as the ID in justifying its decision; the same danger of self-referential reasoning remains, one way or another. In part for this reason, the Supreme Court’s solution to the problem in Chhina has been criticized (see, e.g., Paul Daly, “To Have the Point: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29” (5 June 2019) online (blog): Administrative Law Matters ). As Professor Daly notes, the solution to the self-referential reasoning lies not in offering detainees a different procedure for the assessment of the legality of detention, but rather, as Abella J. stressed in her dissent in Chhina, ensuring that at each detention review detainees’ Charter rights remain front and centre.", - "current_to": "2020-08-07", + "text": "Commentators are generally in agreement that the thresholds under Articles 1 and 33 of the Refugee Convention are the same — in other words, that all refugees under the Refugee Convention benefit from Article 33 non-refoulement protection notwithstanding the difference in wording between Article 1 and Article 33: see, e.g., Goodwin-Gill and McAdam, at p. 234; Wouters, at pp. 56-57; Hathaway, at pp. 304-5; Jari Pirjola, “Shadows in Paradise — Exploring Non-Refoulement as an Open Concept” (2007), 19 Int’l J. Refugee L. 639, at p. 645. The commentators’ position is supported by judicial decisions in the United Kingdom, Australia and New Zealand: see, e.g., R. v. Secretary of State for the Home Department ex p. Sivakumaran, [1988] 1 A.C. 958, at p. 1001; M38/2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2003] FCAFC 131, 199 A.L.R. 290, at para. 38; Zaoui v. Attorney-General (No. 2), [2005] 1 N.Z.L.R. 690 (C.A.), at para. 36.\n\nThere are however, opinions to the contrary in the United States. For example, in Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987), in the course of interpreting the U.S. domestic law tests for withholding of deportation and granting asylum as a refugee, a majority of the Supreme Court opined that Article 33.1 of the Refugee Convention does not extend non-refoulement protection to everyone who meets the definition of refugee: p. 440. This view, however, was not accepted by three members of the court. Given the fundamental human rights character of the Refugee Convention and the centrality to refugee law of the principle of non-refoulement, I, with respect, find the views of the commentators and the judicial opinions from other jurisdictions to which I have referred more persuasive on this point.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-58", + "id": "scc-7899-61", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 136–137", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).\n\nAlthough the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings “will merit greater vigilance by the courts” (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.", - "current_to": "2020-08-07", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 102", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", + "division": "", + "text": "The closing words of s. 44(1)(b) — “may be prejudiced” — seem concerned with risk of prejudice rather than with the need to demonstrate that it is more likely than not to occur. It is only sensible, in my view, to think that a person who meets the definition of refugee under s. 96 of the IRPA also meets the test for risk of prejudice set out in s. 44(1)(b). Moreover, this interpretation best gives effect to an important purpose of s. 44(1)(b), that is, to implement Canada’s non-refoulement obligations in the extradition setting. As Mr. Van Kessel put it during his testimony to the Parliamentary Committee considering the draft Bill, the purpose of this provision is to require the Minister to refuse surrender “if the refugee definition applies”. It also seems to me that a person’s position is prejudiced when he or she is extradited contrary to Canada’s non-refoulement obligations under international law. I conclude that a person entitled to refugee protection in Canada and therefore protection against refoulement is entitled to protection under s. 44(1)(b). (iii) Burden of Proof", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-59", + "id": "scc-7899-62", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 138–139", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 103–104", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.\n\nThe Immigration Division Rules, S.O.R./2002-229 provide in section 26 that documents the parties intend to rely on must be provided in advance: 26. If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division. The copies must be received: (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and (b) in all other cases, at least five days before the hearing. 26. Pour utiliser un document à l’audience, la partie en transmet une copie à l’autre partie et à la Section. Les copies doivent être reçues : a) dans le cas du contrôle des quarante-huit heures ou du contrôle des sept jours, ou d’une enquête tenue au moment d’un tel contrôle, le plus tôt possible; b) dans les autres cas, au moins cinq jours avant l’audience.", - "current_to": "2020-08-07", + "text": "There is one significant difference between the task facing the Minister on a surrender decision under the EA and the task facing the Refugee Protection Division (or the Refugee Appeal Division) under the IRPA at the time refugee status was granted. That is the factor of timing. As noted earlier, an individual’s status as a refugee under the Refugee Convention has a temporal aspect; the status depends on the situation that exists at the time protection is sought. In the same way, the relevant time for assessing entitlement to non-refoulement protection is the time removal is sought. The same principle applies to s. 44(1)(b). The question of entitlement to protection against refoulement arises at the time surrender is being considered and must be assessed in light of the circumstances at that time. I therefore agree with the Minister when he decided that he should have regard to current conditions in considering whether to surrender the appellants, not to the conditions in Hungary some six years earlier when the appellants had sought and been granted refugee status.\n\nIt is often contended, as it was during argument of this appeal, that the principle of non-refoulement has acquired the status of jus cogens. I do not find it necessary to decide this point, which is controversial among international law scholars: see, e.g., the review of the literature in Aoife Duffy, “Expulsion to Face Torture? Non-refoulement in International Law” (2008), 20 Int’l J. Refugee L. 373. Canada has bound itself to the principle of non-refoulement by express provision in the Refugee Convention. There is no inconsistency between Canadian domestic law and Canada’s international undertaking in this regard on the interpretation I would adopt of s. 44.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-60", + "id": "scc-7899-63", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 140–141", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 105", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The interveners assert that detainees do not receive sufficient and timely disclosure to allow them to know the case they have to meet and to respond. They argue that the Immigration Division Rules fall short of what fairness requires because they, and the relevant policy guidelines, require disclosure of only the documents on which the Minister intends to rely. They also point to evidence that says that the disclosure that is made is often late and leaves counsel with no ability to adequately represent the detainee’s interests.\n\nThe existence of a legislated disclosure requirement does not dispose of the question whether procedural fairness has been met. The Court must still examine whether the duty of fairness has been fulfilled. The Federal Court observed that Mr. Brown raised “legitimate concerns about the timeliness and quality of pre-hearing disclosure” (Federal Court reasons at para. 127). I agree that those concerns are substantiated by the evidence. Mr. Singh, a hearings officer with the CBSA, admits that, although disclosure is to be provided in advance, “there are times where it is not provided in advance” (Federal Court reasons at para. 110).", - "current_to": "2020-08-07", + "text": "The question then arises as to who bears the burden when a person with refugee status invokes s. 44(1)(b) to avoid surrender. The approach taken by the Minister in this case — to place the burden of proving on the balance of probabilities that persecution would in fact occur — in my view is not compatible with Canada’s international undertakings with respect to non-refoulement or with the requirements of fundamental fairness to the refugee. As noted, non-refoulement is a cornerstone of refugee protection under the Refugee Convention and one from which states may not make reservations: see Article 42. Moreover, the EA underlines the central importance of this obligation in s. 44(1)(b) by making risk of persecution a mandatory ground of refusal of surrender which prevails over extradition treaty obligations. Canada has established elaborate quasi-judicial proceedings to make refugee determinations. In light of all this, my view is that where a person has been found, according to the processes established by Canadian law, to be a refugee and therefore to have at least a prima facie entitlement to protection against refoulement, that determination must be given appropriate weight by the Minister in exercising his duty to refuse extradition on the basis of risk of persecution.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-61", + "id": "scc-7899-64", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 142–144", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 106–107", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee. This includes information pertaining to the grounds for the detention, information pertaining to the section 248 criteria, the existence of an immigration nexus, and the factors that bear upon the judge’s assessment whether continued detention is warranted and consistent with Charter and administrative law principles. While the disclosure obligation necessarily encompasses information that is helpful to the detainee, it is not unlimited. It is always tempered by the requirement that the information be relevant to the circumstances of the particular detainee.\n\nSection 26 of the Immigration Division Rules, even if followed, does not fulfill the minimum requirements of the common law duty of fairness. This is because the requirement to introduce evidence arises only where information provided is contradicted by another party (Canada, Citizenship and Immigration Canada, ENF 3: Admissibility, Hearings and Detention Review Proceedings, (Ottawa: April 29, 2015) at 34 (ENF 3)).\n\nENF 3 states that “[i]f the hearings officer recommends continued detention, the hearings officer should submit all available evidence to the ID in support of continued detention” (at 38). This falls short of what procedural fairness requires. Procedural fairness requires that the detainee have advance disclosure of all evidence relevant to the section 248 criteria, regardless of whether the Minister relies on it to support continued detention.", - "current_to": "2020-08-07", + "text": "In my view, there should be no burden on a person who has refugee status to persuade the Minister that the conditions which led to the conferral of refugee protection have not changed. This approach is not only consistent with Canada’s domestic law in relation to cessation of refugee protection on the basis of changed circumstances, but with Canada’s international undertakings with respect to non-refoulement of refugees. It also seems to me to be a more practical and fair approach than placing a burden on refugees to prove current conditions in the country from which they have been absent perhaps, as in this case, for an extended period.\n\nChange of circumstances in a refugee’s country of origin may lead to cessation of refugee protection. This is contemplated by Article 1C(1) to (6) of the Refugee Convention. In short, protection ceases to apply to persons who, by virtue of a change in circumstances, no longer need it. Thus, under Article 1C(5) and (6), refugee protection ceases to apply when the circumstances which led to refugee status being recognized have ceased to exist. When these changes in circumstance occur between the time refugee status is claimed and adjudication of the claim, they may justify refusal of refugee status. If the changed circumstances occur after refugee status has been conferred, they may be invoked to justify revocation of that status on the basis that the person is no longer entitled to refugee protection.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-62", + "id": "scc-7899-65", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 145", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 108–109", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The legality of a detention order pending removal is underpinned by a finding, on the evidence, that removal remains a possibility. For this reason, disclosure of evidence concerning the likelihood of removal is also central to the legality of a detention order. This in turn requires the ID to assess the Minister’s efforts respecting removal and the reasons for delay at each and every hearing. Detainees are entitled to know what evidence the Minister relies upon for an argument that removal remains a possibility. Subject to recognized public interest privileges arising under section 38.01 of the Canada Evidence Act, R.S.C. 1985, c. C-5, relevant evidence of communications with a receiving country ought to be disclosed in advance of the hearing. Given the obligation imposed by section 248 of the Regulations, it would be a rare case where a member could properly exercise their discretion to continue detention in the absence of this evidence.", - "current_to": "2020-08-07", + "text": "Apart from changed circumstances, the Refugee Convention also has exclusion clauses (Article 1F) which may be invoked after refugee status has been granted to demonstrate that the person was not, in fact, entitled to refugee protection. As noted earlier, the exclusions relate for example to war crimes, serious non-political crimes and acts contrary to the purposes and principles of the United Nations. As these exclusions relate to the entitlement of a person to refugee status, they will also be relevant to determining entitlement to non-refoulement protection. For the purposes of non-refoulement protection under the Refugee Convention, it is co-extensive with the entitlement to refugee protection.\n\nIt is widely accepted that the state bears the burden of proof that refugee status previously recognized should be terminated on the basis that the circumstances justifying refugee status no longer exist: Hathaway, at p. 920, fn. 20; Goodwin-Gill and McAdam, at p. 143; Joan Fitzpatrick and Rafael Bonoan, “La cessation de la protection de réfugié” in Feller, Türk and Nicholson, 551, at pp. 596 and 603; United Nations High Commissioner for Refugees, “Relevé des conclusions: La cessation du statut de réfugié”, May 3-4, 2001, para. 27 reproduced in Feller, Türk and Nicholson, 611. Thus, under the Refugee Convention, persons who have established that they meet the refugee definition should not bear the burden of proving that they continue to do so.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-63", + "id": "scc-7899-66", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 146–147", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 110", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The common law obligation on the Minister to disclose—subject to public interest privileges—all pertinent documents is also consistent with Canada’s international law obligations. The United Nations High Commissioner for Refugees’ Detention Guide emphasizes that a “minimum procedural protection” for detainees is that an immigration detainee’s lawyer “have access […] to records held on their client” (United Nations High Commissioner for Refugees, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012 at para. 47(ii)). The United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, 4 May 2015, WGAD/CRP.1/2015 (UN Basic Principles and Guidelines) requires that disclosure include information that could assist the detainee, and that it be provided to the detainee “without delay so as to provide adequate time to prepare the challenge” (UN Basic Principles and Guidelines, Guideline 5 at 14, and Guideline 13 at 17-18). The common law requires the same protections.\n\nThe interveners point to the Federal Court’s recent decision, Allen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 486 (Allen), as demonstrative of how the regime lacks procedural protections. In Allen, the Federal Court found that the duty of fairness did not require disclosure of the CBSA’s communications with Jamaica, even though they had been specifically requested by the detainee. The Federal Court’s decision turned in part on the fact that the detainee had been uncooperative (Allen at para. 62).", - "current_to": "2020-08-07", + "text": "This view is also consistent with Canadian domestic law. The cessation provisions of the Refugee Convention are reflected in the IRPA . Under the IRPA, the MCI may apply to the Refugee Protection Division for a determination that refugee protection has ceased by virtue of any of the circumstances set out in s. 108(1): s. 108(2). Section 108(1) lists a number of circumstances which virtually mirror those set out in Article 1C(1) to (6) of the Refugee Convention and includes, in s. 108(1)(e) that “the reasons for which the person sought refugee protection have ceased to exist”. A second basis of termination is provided for under s. 109. The Refugee Protection Division, on application of the Minister, may vacate a decision to allow a claim for refugee protection if it finds that the decision was obtained as a result of misrepresentation or withholding material facts. Consistent with my earlier comments on the burden of proof, the IRPA makes it clear that it is up to the MCI to apply for the order that refugee protection has ceased and to advance the reasons in support of the application: s. 108(2) of the IRPA and Refugee Protection Division Rules, SOR/2002-228, rule 57(2)(f).", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-64", + "id": "scc-7899-67", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 148–149", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 111–113", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The cooperation of a detainee is a relevant consideration for the ID in determining alternatives to detention, the cause of delay in removal and the assessment of the reasonableness of the Minister’s efforts to effect removal. Lack of cooperation, however, is irrelevant when it comes to deciding which procedural protections are afforded to a detainee by the duty of fairness. To the extent that Allen stands for the proposition that lack of cooperation vitiates the Minister’s disclosure obligations, it should not be followed.\n\nThe lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under section 248. In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure (see section 18.2 of the Federal Courts Act). Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents which results in a breach of procedural fairness.", - "current_to": "2020-08-07", + "text": "Thus, the obligations under the Refugee Convention and the analogy to the cessation and revocation provisions under the IRPA suggest that, under s. 44(1) (b) of the EA , a refugee should not have to establish at the surrender phase that the conditions which lead to conferring refugee status, and thus to non-refoulement protection, continue to exist. This approach also seems to me to be both practical and fair. It gives some weight, but not binding force, to the earlier conclusion that refugee protection was justified. It also prevents placing a burden on a person sought that he or she is not well placed to discharge. Consider the present case. It does not to me seem either fair or practical to require the appellants to establish current conditions in Hungary, a country from which they have been absent for six years. Both the Minister, through consultation with the MCI, and the requesting state are much better placed to come forward with evidence of changed conditions than is the refugee whose extradition is sought.\n\nIn my view, when the Minister acting under the EA is in effect determining that refugee protection (and thus non-refoulement protection under the Refugee Convention) of a person sought is excluded or is no longer required by virtue of a change of circumstances in the requesting country, he must be satisfied on the balance of probabilities that the person sought is no longer entitled to refugee status in Canada.\n\nNothing I have said affects the burden on a person who has not been granted refugee status who relies on mandatory grounds of refusal of surrender under s. 44. (e) Summary of Conclusions", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-65", + "id": "scc-7899-68", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 150–153", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 114", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "As I have noted, the conclusion of the majority of the Supreme Court in Chhina that recourse to habeas corpus should be allowed does not flow from any conclusion regarding the constitutionality of the IRPA. The issue before the Supreme Court was whether habeas corpus was available as an alternative remedy to detention reviews and judicial review. The focus of this case, in contrast, is the constitutionality of the scheme that governs detention and review before the ID. Nonetheless, given the importance of judicial oversight to ensuring the lawful integrity of ID decisions, and considering the submissions received from the parties subsequent to the release of Chhina while this case was under reserve, certain observations are in order.\n\nThe first observation is that whether viewed from a procedural or substantive perspective, judicial review provides a remedy that is fully responsive to the seriousness of the issues under consideration. I will deal with the substantive considerations first.\n\nA majority of Supreme Court in Chhina finds that the ID “does not conduct a fresh review of each periodic detention” and “as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus” (at para. 64).\n\nTo the contrary, the ID must look at the detainee’s entire detention history. The Regulations themselves require no less. Three of the five criteria in section 248 require the ID to have regard to the length of time in detention, which mandates a consideration of the entire history. The detainee’s entire detention history necessarily forms part of the evidence before the ID, as it will before the Federal Court.", - "current_to": "2020-08-07", + "text": "I will summarize my conclusions about how s. 44(1)(b) should be applied when the person sought has refugee status in Canada and the requesting state is the country from which refugee protection was accorded. 1. Section 44(1)(b) must be considered whenever the Minister’s surrender decision concerns a person with refugee status in Canada and the requesting state is the one from which the refugee has been granted protection. 2. Refusal of surrender is mandatory if the Minister is satisfied that the conditions which lead to conferral of refugee status still exist and it is not shown that the person sought was or has become ineligible for refugee status. In short, a person’s position may be prejudiced within the meaning of s. 44(1)(b) if surrendered in violation of Canada’s non-refoulement obligations under the Refugee Convention. 3. The relevant time for considering the person’s ongoing entitlement to refugee protection and therefore protection against refoulement and any change of conditions in the requesting state for the purposes of s. 44(1)(b) is the time at which surrender is sought. 4. The refugee status of the person sought establishes, absent proof on the balance of probabilities to the contrary, that his or her position will be prejudiced on a prohibited ground under s. 44(1)(b) if surrendered. The refugee does not have the burden of showing that the circumstances giving rise to conferral of refugee status continue to exist in the requesting state or that he or she otherwise remains entitled to refugee protection. 5. The Minister must consult with the MCI concerning current conditions in the requesting state in considering whether the person sought is no longer entitled to refugee protection on the basis of changed circumstances. 6.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-66", + "id": "scc-7899-69", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 154–156", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 114–116", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "Neither the ID, nor the Federal Court assesses the legitimacy of detention blinded to the overall history of detention. Each 30-day detention review requires consideration of the detention as a whole. Indeed, a cursory review of ID and Federal Court decisions demonstrates this to be the case (see, e.g., Canada (Citizenship and Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433 at paras. 66-67; Hamdan at paras. 29-30; Canada (Public Safety and Emergency Preparedness) v. Arook, 2019 FC 1130; Canada (Public Safety and Emergency Preparedness) v. Taino, 2020 FC 427; and the Federal Courts Rules, S.O.R./98-106, r. 306-309, r. 317).\n\nWhere the legislation prescribes a set of considerations, and mandates the default outcome of release, departure or deviance from either results in an unlawful decision (Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203). In a detention review, the range of lawful decisions available to the ID member is constrained by section 58 of the IRPA and section 248 of the Regulations. If a detention order has not been made according to law, it will be set aside. For example, an ID member’s failure to consider the likelihood of removal, relevant factors in section 248 or beyond, or alternatives to detention, would result in the decision being set aside. Release would follow unless the Federal Court order is stayed.\n\nMy second observation is that the assertion made to this Court, and to the Supreme Court in Chhina, that judicial reviews were invariably moot has no foundation in the evidence.", - "current_to": "2020-08-07", + "text": "A duty of fairness applies to the Minister’s consideration of the issue under s. 44(1)(b) which includes providing the refugee with the case to meet, providing a reasonable opportunity to challenge that case as well as a reasonable opportunity to present his or her own case. (3) The Minister’s Decision\n\nI return to the Minister’s decisions with respect to the appellants. As is apparent from the preceding discussion, my view is that the Minister’s consideration of the appellants’ case was fundamentally flawed. He failed to address s. 44(1)(b) which is the most relevant provision of the EA in relation to their surrender, he imposed a burden on them to show continuing risk of persecution and he applied a wrong and more onerous test than that prescribed by s. 44(1)(b). In short, the decision was based on incorrect legal principles and was unreasonable. I should add that the appellants did not place before the Minister the role that s. 44(1)(b) ought to play in his determination and the provision was referred to only in passing in the submissions in this Court.\n\nThe respondent briefly submits that the appellants are disentitled to non-refoulement protection by virtue of the serious crime exception. However, in my view, this question was never more than a peripheral issue in this case and the Minister did not base his decision on it.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-67", + "id": "scc-7899-70", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 157–158", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 117–118", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The evidence paints a different picture. As Abella J. noted in Chhina, the Federal Court heard and disposed of Mr. Chhina’s judicial review application in one week less time than the habeas corpus application was heard and decided (at para. 119). Again, a cursory review of Federal Court jurisprudence with respect to detention review demonstrates that applications for judicial review are often heard and disposed of in the Federal Court on an urgent basis (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Shen, 2020 FC 405; Hamdan; Arook; and Taino).\n\nI agree with my colleague, Justice Stratas, who has recently observed that the “factual spin and speculation about the procedural flexibility, innovative capability and remedial effectiveness of the Federal Courts” in Chhina and R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61 is “false and unsupported” (Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 22).", - "current_to": "2020-08-07", + "text": "I should first set out the legal parameters of the serious crime exception to non-refoulement protection. Articles 1E and 1F of the Refugee Convention set out exclusions from refugee protection in relation to those who either do not need or are seen as not deserving it: Martin Jones and Sasha Baglay, Refugee Law (2007), at p. 146. Section 98 of the IRPA simply incorporates these exclusions by reference. Article 1E excludes persons who are recognized by the country in which they have taken residence as having rights and obligations attaching to nationality in that country. Article 1F excludes persons with respect to whom there are serious reasons for considering that they have (a) committed a crime against peace, a war crime, or a crime against humanity; (b) a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee or (c) has been guilty of acts contrary to the purposes and principles of the United Nations.\n\nIn this case, the Minister referred to the exclusion in (b), which I will refer to as the “serious crime” exception, in reaching his decision to extradite the appellants. In his January 30, 2008 letter addressing Mr. Németh’s submissions as to why he ought not to be surrendered, the Minister noted the exception to non-refoulement dealing with serious non-political offences and that in the immigration context, such offences had been defined to be offences punishable by imprisonment of 10 years or more. He continued: “While it is not clear that refugee law is applicable in the extradition context, I note that the offence of fraud is punishable under Canadian law by a maximum term of imprisonment of more than ten years” (A.R., vol. 1, at p. 12).", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-68", + "id": "scc-7899-71", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 159", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 119–120", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The Federal Court is accessible 24 hours a day, 365 days a year, from coast to coast for urgent applications, in both official languages. Interim stay orders are frequently issued (Federal Courts Act, section 18.2). Time frames are routinely abridged (see, e.g., MPSEP v. Mustafa Abdi Faarah ((IMM-1347-19); MPSEP v. Martin Sevic (IMM-1375-20); Canada (Public Safety and Emergency Preparedness) v. Ahmed, 2019 FC 1006; MPSEP v. Baniashkar, 2019 FC 729; Hamdan and Arook). Hearing dates are routinely expedited. Hearings may be by teleconference, or in person, in Federal Court facilities across Canada. Cases are heard and disposed of as quickly as the parties request or circumstances require (see, e.g., MPSEP v. Malkei, IMM-2466-20; MPSEP v. Shen, IMM-1626-20). Federal Court judges assigned to hear judicial review applications of detention decisions understand that liberty interests are at stake. The remedies can be innovative and creative (see, e.g., Fond du Lac First Nation v. Mercredi, 2020 FCA 59 at para. 5; Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93; D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167). Further, and unlike many superior courts, there is a standing liaison committee between the Federal Court and representatives of the specialized immigration bar. This committee, including the sub-committee on immigration detention, serves as a vehicle for addressing any matter of concern relating to the efficient and expeditious disposition of immigration proceedings.", - "current_to": "2020-08-07", + "text": "These comments make it clear, in my view, that the Minister did not decide whether the serious crime exception applied to the appellants. His decision leaves three critical issues unresolved: how the serious crime exception relates to extradition proceedings, what constitutes a “serious non-political crime” for these purposes and whether the appellants were accused of committing such a crime.\n\nFirst, the Minister noted how serious crime was defined in the “immigration context”. I take this to be a reference to s. 105 of the IRPA . As I mentioned earlier, that provision states that if a person is ordered surrendered for an offence punishable by 10 years or more, the order of surrender is deemed to be a rejection of a claim for refugee protection by virtue of the serious crimes exception in Article 1F(b) of the Refugee Convention. Thus, it seems that Parliament, in the IRPA , has decided two issues about how the Refugee Convention should be implemented in Canada. The first is that a crime punishable by at least 10 years imprisonment constitutes a “serious non-political crime” within the meaning of Article 1F(b). (I note that this approach is also consistent with the inadmissibility rules for serious criminality provided for in s. 36 of the IRPA .) The second is that the test for committal on extradition is sufficient to meet the “serious reasons for considering” test set out in Article 1F. In his decision, however, the Minister simply noted that “it is not clear” that approach to the definition of serious crime under the IRPA applies in the extradition context; I do not take this as a decision that it does.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-483607-69", + "id": "scc-7899-72", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 160–163", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 121", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "In any event, the possibility that an ID decision may be moot is not pertinent. Technically moot decisions may be reviewed where the failure to do so would render the decision evasive of judicial review (Democracy Watch v. Canada (Attorney General), 2018 FCA 195 at para. 14).\n\nTo conclude, judicial review, like habeas corpus, tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity. It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective. As the Supreme Court concluded in Charkaoui, the remedy of judicial review is “robust” (at para. 123).\n\nThe Federal Court certified the following question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nI would answer the question in the negative and would dismiss the appeal. Consistent with the request of the parties, I would make no order as to costs. \"Donald J. Rennie\" J.A. “I agree. Johanne Gauthier, J.A.” “I agree. David Stratas, J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2020-08-07", + "text": "Moreover, while the Minister stated that the offence of fraud is punishable by imprisonment of 10 or more years, he did not decide that the appellants were charged with an offence punishable by such a sentence. Under Canadian law, the possible punishments for fraud depend on the value of the subject matter of the offence. Where it exceeds $5,000, the maximum penalty is 14 years imprisonment; where it does not exceed $5,000, the maximum term of imprisonment is 2 years: Criminal Code , ss. 380(1) (a) and (b). Thus, even assuming the IRPA ’s approach to the definition of a serious non-political crime applies under the Refugee Convention, whether the crime alleged against the appellants in Hungary is such a crime depends on the value of the subject matter of the offence.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-36347-1", + "id": "scc-7899-73", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 1–4", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "para 122", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "This is an appeal from a decision of the Federal Court, 2008 FC 341, dated March 13, 2008, pursuant to which Madam Justice Dawson dismissed the appellants’ judicial review application on the ground that it was moot. In so concluding, the learned Judge certified the following question: Where an applicant has filed an application for leave and judicial review challenging a refusal to defer removal pending a decision on an outstanding application for landing, and a stay of removal is granted so that the person is not removed from Canada, does the fact that a decision on the underlying application for landing remains outstanding at the date the Court considers the application for judicial review maintain a “live controversy” between the parties, or is the matter rendered moot by the passing of scheduled removal date?\n\nAs the certified question makes clear, the appellants filed an application for leave to commence a judicial review following the refusal by an enforcement officer to defer their removal from Canada until a decision had been rendered with regard to a humanitarian and compassionate application (“H&C application”) made by them pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).\n\nTwo issues arise in this appeal. The first one is the issue of mootness to which the certified question pertains. The second issue, which we need address only if we conclude that the judicial review application is not moot, concerns the reasonableness of the enforcement officer’s decision to refuse to defer the appellants’ removal from Canada.\n\nI now turn to the facts relevant to the disposition of the appeal. THE FACTS", - "current_to": "2009-03-13", + "text": "The Minister noted in his January 30 letter that the appellants were alleged to have sold the right of lease for premises in Budapest for approximately C$2,700 when they in fact had no right to do so (A.R., vol. 1, at p. 10). Neither the case summary nor the supplementary case summary provided to the Minister suggested that the alleged offence involved deprivation of over $5,000 and there is no response in the record or in the Minister’s January 30 letter challenging the appellants’ submissions to the Minister that the subject matter of the fraud was less than $5,000. It is true, as pointed out in a footnote in the respondent’s factum and as referred to briefly in oral argument that there is evidence in the record that the money paid to the appellants was a deposit in relation to a transaction for a total of just under $10,000. However, there is no evidence in the record that the actual deprivation exceeded the roughly $2,700 (or in some places in the record $2,500) that was allegedly given to the appellants.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-36347-2", + "id": "scc-7899-74", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2010 SCC 56", + "act_short": "Németh", + "act_name": "Németh v. Canada (Justice)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 5–8", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Németh v. Canada (Justice), 2010 SCC 56", + "marginal_note": "paras 123–124", + "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellants are citizens of Argentina who entered Canada in April 2000 as visitors. In November 2000, shortly after their visas expired, they filed claims for refugee protection which were rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board on May 30, 2002. As a result, the departure orders made against them when they filed their refugee claims became effective. On October 16, 2002, their application for leave to commence a judicial review application was dismissed by the Federal Court.\n\nOn November 30, 2004, counsel for the appellants made an inquiry with regard to an H&C application which, according to counsel, had been submitted on behalf of the appellants in March 2003. The Case Processing Centre in Vegreville responded to this inquiry and advised counsel that it had no record of an H&C application having been filed on behalf of the appellants.\n\nIn January 2006, warrants were issued against the appellants by reason of their failure to report for a pre-removal interview. The warrants were executed against them in March and July 2006, at which time they were again informed that there was no record of a pending H&C application made on their behalf.\n\nOn September 5, 2006, the appellants filed an H&C application which was returned to them for insufficient funds. The application was resubmitted on December 8, 2006, this time with the proper funds. During that period, the appellants also filed a pre-removal risk assessment (a “PRRA”) which was refused. As a result, the appellants were served with a direction to report for removal from Canada on January 18, 2007.", - "current_to": "2009-03-13", + "text": "There may be a nice legal question about the value of the subject matter in this case. However, my view is that the Minister did not base his decision on the serious crime exception. As I noted, the Minister did not resolve either of the questions that he would have had to resolve in order to base his decision on this point. Nor do I think that, in the circumstances of this case, we should give effect to the Minister’s submission that this exclusion applies. As the Court noted in Lake, at para. 25, “the Minister must respond to any submissions against surrender made by the individual and explain why he disagrees”. Here, he did not do so with respect to this issue. The appellants had submitted to him, in effect, that they did not fall within the serious crime exception because the value of the subject matter did not exceed $5,000. The Minister’s decision does not indicate that he disagreed with that submission or explain why he thought it was incorrect. While it will be open to the Minister to consider on the reconsideration of this matter whether the appellants are excluded from refugee protection, and therefore also from non-refoulement protection, by virtue of the serious crime exception, it is now too late to resolve this appeal adversely to the appellants on that basis. V. Conclusion\n\nI would allow the appeal, set aside the judgment of the Court of Appeal and the Minister’s surrender decisions and remit the matter to the Minister for reconsideration according to law. The appellants did not request costs and I would order none. Appeal allowed.", + "current_to": "2010-11-25", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2010] 3 SCR 281", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" }, { - "id": "fca-36347-3", + "id": "scc-7944-1", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 9–12", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 1–2", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellants having purchased airline tickets for themselves and their children for a return to Argentina on February 15, 2007, their removal was deferred to that date so as to allow them extra time to make necessary arrangements for their departure from Canada. I should point out here that the appellants have two Canadian-born children, Yan Sebastian who is 7 seven years and Zoe who is 4 years old (respectively 5 and 2 years old at the time of the enforcement officer’s decision)..\n\nNotwithstanding the foregoing, on January 26, 2007, the appellants made a further request to have their removal deferred, i.e. that deferral be granted until such time as their H&C application had been decided. On January 29, 2007, the enforcement officer refused to defer their removal.\n\nThis led the appellants to seek leave of the Federal Court to commence a judicial review application of the enforcement officer’s decision. On February 9, 2007, O’Keefe J. stayed the appellants’ removal from Canada until a decision had made on their judicial review application and on October 19, 2007, leave to pursue a judicial review was granted by the Federal Court.\n\nThe appellants’ judicial review application was heard by Dawson J. on January 17, 2008. She dismissed it on March 13, 2008. It is to that decision that I now turn. DECISION OF THE FEDERAL COURT", - "current_to": "2009-03-13", + "text": "Binnie J. — Since 1978, Canada has allowed Canadian citizens or permanent residents to sponsor their relatives to immigrate to Canada. Family reunification was an important objective of the former Immigration Act, R.S.C. 1985, c. I-2, and remains so under the successor legislation enacted in 2001 as the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). Of the over 2 million permanent residents admitted to this country between 1997 and 2007, 615,000 (or 27%) are members of the family class. If such persons after arriving in Canada obtain social assistance (contrary to their sponsor’s undertaking of support), the sponsor is deemed to have defaulted and either the provincial or federal government may recover from the sponsor the cost of providing social assistance.\n\nThe present proceedings were initiated by eight sponsors who denied liability under their undertakings. As will be explained, the undertakings are valid contracts but they are also structured, controlled and supplemented by federal legislation. The debts created thereby are not only contractual but statutory, and as such their enforcement is not exclusively governed by the private law of contract. The issue raised by this appeal is the extent to which, if at all, the government is constrained by considerations of procedural fairness in making enforcement decisions in relation to these statutory debts.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-4", + "id": "scc-7944-2", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 13", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 3–4", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Dawson J. found the appellants’ judicial review application to be moot. In her view, a decision on the merits of the application would not resolve any controversy between the parties. The substance of the learned Judge’s reasoning appears from paragraphs 33 to 38 of her Reasons, which I reproduce: [33] The applicants are subject to a valid removal order and were directed to report for removal on January 18, 2007, on Air Canada flight #92. In order to issue the direction to report, the CBSA was first required to make a number of travel arrangements, including ensuring the availability of travel documents, an itinerary and airline tickets, and to notify the airline of its requirement to carry a foreign national from Canada. [34] The effect of the stay issued by the Court was to render those arrangements nugatory when the date scheduled for removal passed and the applicants remained in Canada. Whether the Court now decides that the decision of the enforcement officer was reasonable or not, the applicants have received the deferral that the officer refused. It is now an abstract question whether the enforcement officer ought to have deferred removal. [35] For the following reasons, I can see no practical effect on the rights of the parties if this case is decided on its merits. If the case is decided and dismissed, the stay will come to an end, the CBSA can make new removal arrangements, and the applicants can request deferral again. That same result will occur if the application is allowed on the same basis as in Samaroo, cited above. The validity of the removal order is not affected; the applicants remain subject to removal. [36] In either event, the parties will only have the benefit of the Court's view of the propriety of removal on stale-dated facts.", - "current_to": "2009-03-13", + "text": "The Attorney General of Canada argues (and the applications judge agreed) that the Crown is not required even to notify an allegedly defaulting sponsor of its claim prior to filing with the Federal Court a ministerial certificate of the alleged debt which becomes, automatically, enforceable as if it were a judgment of that court. He argues that the legislation imposes on the Crown a duty (not a discretion) to collect sponsorship debts in full. He denies that in carrying out this duty there is any obligation of procedural fairness.\n\nOn a proper interpretation of the governing legislation, however, I believe the Crown does have a limited discretion in these collections. The discretion enables the governments to delay enforcement action having regard to the sponsor’s circumstances and to enter into agreements respecting terms of payment, but not simply to forgive the statutory debt. On the evidence, Ontario has had in place a discretionary policy respecting the collection of family sponsorship debts for many years, both before and after the enactment of the IRPA in 2001.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-5", + "id": "scc-7944-3", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 13", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 5–6", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "However, the exercise of discretion to defer removal is very fact-based. There is no way of knowing whether, since the decision at issue was made, there have been intervening circumstances of risk, pregnancy, birth, illness, or the like. Further, the jurisprudence of the Court is to the effect that the length of time that a humanitarian and compassionate application has been outstanding is a relevant consideration when considering requests for deferral. In the present case, the applicants' humanitarian and compassionate application has now been outstanding for an additional 12 months. A decision on stale facts will be of little use to the parties if further removal arrangements are made. [37] Even if the application is allowed, remitted to a new officer for determination and updated information about the applicants' circumstances is obtained, the parties will be in the same position as if the Court had dismissed the application, either on the merits or on the basis of mootness, and new removal arrangements were made. [38] Thus, any decision on the merits of this application will not resolve any controversy between the parties. The application is therefore moot and, further, no useful purpose would be served by determining the application on its merits. [Emphasis added]", - "current_to": "2009-03-13", + "text": "In the exercise of this discretion, which Parliament has made clear is narrow in scope, the Crown is bound by a duty of procedural fairness. The content of this duty is fairly minimal. The Crown is obliged prior to filing a certificate of debt with the Federal Court (i) to notify a sponsor at his or her last known address of its claim; (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; and (iv) to notify the sponsor of the government’s decision. This is a purely administrative process. It is a matter of debt collection. There is no obligation on the government decision maker to give reasons. The existence of the debt is, in the context of this particular program, reason enough to proceed.\n\nAlthough the respondents took the position in the courts below that they should be altogether “discharged from their sponsorship obligations” (2009 ONCA 794, 98 O.R. (3d) 1, at para. 6), they took the less extravagant position in this Court that they do not dispute that undertakings are enforceable. Nor do they dispute that undertakings should be enforced in the overwhelming majority of cases. They are merely asking that the [governments] properly exercise the discretion that was granted to them and consider their circumstances before making the decision to enforce. [R.F., at para. 5]", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-6", + "id": "scc-7944-4", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 14–15", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 7–9", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Dawson J. then went on to deal with the respondent’s argument that the proper characterization of the controversy between the parties was whether the appellants ought to be removed before their H&C application was dealt with. In Dawson J.’s view, that characterization was in error. She explained her opinion as follows at paragraphs 44 and 45: [44] The officer is charged with the duty of effecting removal as soon as is “reasonably practicable.” Equally, subsection 48(2) of the Act requires the subject of an enforceable removal order to leave Canada immediately. In the face of a looming removal date, the officer is presented with a series of facts that are said to warrant deferral at that point in time. The officer then decides whether the facts are such to render removal impracticable, and thus relieve the applicant of his or her obligation to leave immediately. For example, the officer may be asked to defer removal because a humanitarian and compassionate application has been outstanding for 18 months at the time of removal. The officer is not asked to consider, and does not consider, whether removal would be deferred if the application had instead been outstanding for 30 months. [45] For that reason, I find that the proper characterization of the dispute is whether an applicant should be removed, and is obliged to leave, on the scheduled removal date. [Emphasis added]\n\nDawson J. also declined to exercise her discretion to decide the judicial review application. Although she was of the view that an adversarial relationship still existed between the parties, deciding the case on the merits would have, in her view, no practical effect or useful purpose with regard to the parties’ rights.", - "current_to": "2009-03-13", + "text": "The Ontario Court of Appeal held that the Ontario government’s deferral policy improperly fettered its statutory discretion in a manner “inconsistent with the overall legislative scheme” (para. 132). While I agree (as stated) with the court below that the sponsors are entitled to a basic level of procedural fairness, my view is that the Ontario guidelines are quite adequate in that regard and are consistent with the statutory scheme. Moreover, the contention of the respondent sponsors that they are entitled to a more elaborate “process” of decision making must be rejected. We are, after all, dealing with statutory debt collection. I would allow the appeal in part but as these appeals can properly be characterized as test cases, I would do so without costs. I. Facts\n\nForeign nationals may apply to become permanent residents and eventually citizens, under three broad categories: the family class, the economic class and the refugee class (IRPA , s. 12 ). A permanent resident or citizen wishing to sponsor a family member initiates the process by making a sponsorship application. Sponsors must be over 18 years of age, and meet detailed financial and other requirements. Family class members are not assessed independently on their ability to support themselves. Since they obtain their permanent residence status on the sole basis of being in a familial relationship with a sponsor, they are not required to meet the financial or other selection requirements which are imposed on other classes of immigrants. A. The Sponsors\n\nThe respondents to this appeal are eight sponsors whose relatives received social assistance and who are therefore deemed to have defaulted on their undertaking.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-7", + "id": "scc-7944-5", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 16–17", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 10–12", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "I should point out that Madam Justice Dawson’s decision is only one of a number of recently-determined cases by the Federal Court where it has been held that a judicial review application of an enforcement officer’s decision refusing to defer a person’s removal from Canada is moot (see: Higgins v. M.P.S.E.P., 2007 FC 377; Solmaz v. M.P.S.E.P., 2007 FC 607; Maruthalingam v. M.P.S.E.P., 2007 FC 823; Vu v. Minister of Citizenship and Immigration, 2007 FC 1109; Madani v. M.P.S.E.P., 2007 FC 1168; Adams v. M.P.S.E.P., 21 November 2007 (Court file IMM-4121-07) (F.C.); Kovacs v. M.P.S.E.P., 2007 FC 1247; Baron v. M.P.S.E.P., 2008 FC 341; Islami v. M.P.S.E.P., 2008 FC 364; Leung v. M.P.S.E.P., 17 April 2008 (Court file IMM-3712-07) (F.C.); Palka v. M.P.S.E.P., 2008 FC 342; Lewis v. M.P.S.E.P., 2008 FC 719; and Gumbura v. M.P.S.E.P., 2008 FC 833). THE PARTIES’ SUBMISSIONS\n\nThe appellants submit that the Judge mischaracterized the nature of the dispute between the parties as being “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date.” Rather, the appellants contend that they had requested that their removal from Canada be deferred “pending a determination of their H&C application.” Therefore, the dispute between the parties was not simply whether the appellants’ removal should proceed or not on the scheduled removal date, but whether it should be deferred pending determination of the H&C application. The appellants submit that this controversy remained live at the time of the judicial review application hearing, and remains alive today, since the decision on the appellants’ H&C application remains pending.", - "current_to": "2009-03-13", + "text": "The respondent Dzihic sponsored his fiancée in 2002. His allegation is that when she arrived in Canada she refused to live with him or marry him. Mr. Dzihic notified the immigration department and an order was made for her deportation. However, his fiancée appealed the order successfully without any notice to or input from Mr. Dzihic. He says he was unaware of her success or the fact that she subsequently received social assistance totalling $10,510.65 as of July 2007, for which he is now responsible.\n\nThe respondent El-Murr sponsored her father, mother and two brothers in 1995 while she was unemployed. Her husband was employed at the time and he co-signed the undertaking. After the family members arrived in Canada, Ms. El-Murr left her husband because of alleged abuse and she went on social assistance as did her parents and one brother. The debt amount as of February 2006 is $94,242.16 and she says she cannot afford to repay this amount.\n\nThe respondent Grankin sponsored his mother in 1999. He claims that he subsequently lost his job and had to apply for social assistance. He was thus unable to support his mother after her arrival in Canada. His mother applied for social assistance and received it. Mr. Grankin states that had he known he was responsible for repaying the benefits, he would not have permitted his mother to apply for assistance. As of June 2007 his total debt was $54,426.39.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-8", + "id": "scc-7944-6", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 18–19", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 13–15", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "In the alternative, the appellants submit that the Judge erred in declining to exercise her discretion, even if the judicial review application was moot. The appellants contend that the Judge erred in finding that there would be no practical effect on the rights of the parties if she decided the case.\n\nWith respect to the decision challenged by the judicial review application, the appellants submit that this Court should find that the enforcement officer erred in refusing to defer their removal pending the determination of their outstanding H&C application. They submit that a very long time has passed since they first attempted to file an H&C application and that the best interests of their Canadian children militate in favour of a deferral.", - "current_to": "2009-03-13", + "text": "The respondent Hince married Ms. Patel who was on a visitor’s visa in 2002. She returned to India and Mr. Hince sponsored her and her daughter to return to Canada. They did so in 2006 and lived briefly with Mr. Hince, then left. He says he was unaware that she subsequently received social assistance. His job is low paying and does not permit him, he says, to repay the social assistance amount due as of June 2007 of $10,547.65. He believes he was exploited by Ms. Patel to enable her to gain immigration status.\n\nThe respondent de Altamirano and her husband sponsored her mother in 2000. After arriving in Canada, her mother suffered a stroke. Ms. de Altamirano applied for benefits to pay for her mother’s institutional care. She alleges that she was encouraged to do so by a case worker and did not realize that she would have a responsibility to repay the benefits — as of May 2007 said to be $54,559.99.\n\nThe respondent Mavi sponsored his father in 1996. He alleges he did not read the application or understand it. His father arrived in Canada in 1997 and lived with Mr. Mavi. There was a falling out and the father left. Mr. Mavi learned in 2005 that his father had collected benefits and he contacted the government to advise that his own health was not good, which limited his ability to work. The amount of benefits said to be owed as of June 2005 is $17,818.08.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-9", + "id": "scc-7944-7", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 20–21", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 16–18", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "The respondent submits, as the appellants do, that the judicial review application is not moot. He argues that the correct characterization of the controversy between the parties is whether the appellants should be removed prior to the happening of a particular event, i.e. prior to the determination of their pending H&C application. It is then not the passing of the scheduled removal date which renders the judicial review application moot, but the happening of the event. The respondent disagrees with the Judge’s conclusion that a determination on the merits of the application would be of little use to the parties, and argues that a decision on the merits of the enforcement officer’s decision would provide a real remedy to the parties. Furthermore, the respondent submits that the mootness determination yields an inequitable outcome, since all stay motions where a stay of removal is granted will pre-judge the outcome of the leave and judicial review application, essentially turning stay motions into judicial review applications on short notice and often on a deficient record. The respondent contends that it could not have been intended for the application of the tri-part test to have this effect (see: Manitoba (A.G.) v. Metropolitan Stores (MPS) Ltd., [1987] 1 S.C.R. 110; Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.); R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311).\n\nWith respect to the merits of the application, the respondent submits that the enforcement officer did not err in refusing to defer removal until a decision had been made on the appellants’ pending H&C application. The respondent argues that in light of section 48 of the Act, the Minister was bound to execute the removal order as soon as reasonably practicable.", - "current_to": "2009-03-13", + "text": "The respondent Vossoughi applied to sponsor her mother at a time when she was married. In 2002, she left her husband because, she says, of abuse. In 2003, her mother arrived in Canada. Ms. Vossoughi says she could not support her mother and her mother went on social assistance. She alleges she did not realize she was responsible for repaying the benefits. The amount said to be owed pursuant to the undertaking as of July 2007 is $28,754.71.\n\nThe respondent Zebaradami sponsored his fiancée in 2000. She arrived in Canada in 2001 but only stayed with him for a few weeks, then left him for another man. She received social assistance benefits of $22,158.02 as of July 2007. Mr. Zebaradami says he was duped and that his former fiancée only used him to gain status in Canada.\n\nThe Government of Ontario, which in each case paid the social assistance to the needy relative, took steps to enforce the debt against each of the sponsors. In applications filed in the Ontario Superior Court of Justice, the eight sponsors sought various declarations the result of which, if granted, would be to avoid payment, either temporarily or permanently. B. The Undertakings", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-10", + "id": "scc-7944-8", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 22–25", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 19–20", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Finally, the respondent says that the enforcement officer considered all of the appellants’ circumstances, including the best interests of their children. THE ISSUES\n\nThe questions which we must determine in the present appeal are the following: 1. Did the Applications Judge err in law by dismissing the judicial review application for mootness and by refusing to exercise her discretion to hear the case? 2. If the answer to the first question is in the affirmative, did the enforcement officer make a reviewable error in refusing to defer the appellants’ removal from Canada pending the determination of their outstanding H&C application? ANALYSIS A. Standard of Review\n\nThere is no dispute between the parties that the appropriate standard of review with respect to the mootness issue is the correctness standard. I agree (See: Housen v. Nikolaisen, [2002] 2 S.C.R. 235).\n\nWith respect to the enforcement officer’s decision refusing to defer the appellants’ removal from Canada, I cannot see how it can be disputed that the applicable standard is that of reasonableness (See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190). B. Did the Applications Judge Err in Law by Dismissing the Judicial Review Application for Mootness and by Refusing to Exercise her Discretion to Hear the Case?", - "current_to": "2009-03-13", + "text": "The undertakings signed by Mr. Grankin, Mr. Zebaradami and Ms. de Altamirano contained the following statement with respect to the possibility that enforcement might be deferred (with similar statements made in the undertakings signed by Ms. Vossoughi, Mr. Dzihic and Mr. Hince): The Minister may choose not to take action to recover money from a Sponsor or a Sponsor’s spouse (if Co-signer) who has defaulted in a situation of abuse or in other appropriate circumstances. The decision of the Minister not to act at a particular time does not cancel the debt, which may be recovered by the Minister when circumstances have changed. [Emphasis added.] C. Federal and Provincial Policies\n\nThe Canada-Ontario Memorandum of Understanding on Information Sharing — 2004 (“MOU”), provides for the sharing of information in order to facilitate, inter alia, the enforcement of sponsorship debts. Section 6 of the MOU states that sponsorship debts are “payable on demand”, but that default may be cured in cases where a province accepts partial payment of the debt. Ontario will apply its own guidelines to determine whether collection action should be undertaken immediately or deferred, e.g. in cases of family violence.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-11", + "id": "scc-7944-9", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 26–28", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 21–23", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Both the appellants and the respondent submit that the Judge erred in law in dismissing the application for judicial review on the basis that it was moot. They argue that a live controversy continues to exist between them and that it is not the passing of the scheduled date of removal, i.e. February 15, 2007, which renders the application moot. In their view, although put forward in slightly different terms, it is the rendering of a decision on the appellants’ H&C application that would render the judicial review moot.\n\nI have come to the conclusion that a live controversy still exists between the parties and that, as a result, the appellants’ judicial review application is not moot.\n\nTo begin with, it is important to make clear what the appellants were seeking when they requested deferral of their removal from Canada on February 15, 2007. As the enforcement officer says in her decision, the appellants’ request was put forward on the grounds that they had an outstanding H&C application [which the appellants say they had attempted to file in March 2003] and that it was in the best interest of their Canadian-born children that removal be deferred until the H&C application had been dealt with. In other words, the appellants were not simply asking that they not be removed on February 15, 2007, but that their removal not take place until the determination of their H&C application.", - "current_to": "2009-03-13", + "text": "The Ontario policy itself states that certain cases of default would not be referred for collection, namely where the person is incapacitated and unable to pay, where there is evidence of domestic violence, where the sponsor himself or herself is in receipt of social assistance, or where other “documented extraordinary circumstances” exist. The Attorney General of Ontario contends (unlike his federal counterpart) that the federal legislation does permit a measure of discretion, and that Ontario’s policies are fully compliant. He claims however that relations between Ontario and the sponsors are governed only by rules applicable to private contracts.\n\nThe respondent sponsors contend (and the Court of Appeal agreed) that the wording of the undertakings should be taken into account in the interpretation of the governing legislation. II. Statutory Framework\n\nPursuant to s. 132 of the Immigration and Refugee Protection Regulations, SOR/2002-227, a sponsor is obliged to reimburse the Crown in right of Canada or a province, for the cost of every benefit provided as social assistance to the sponsored family member during the term of undertaking — formerly 10 years but now 3 years for a spouse or a dependent child 22 years of age or older and 10 years for a dependent child less than 22 years of age and all other family members (s. 132(1)). The undertakings set out the obligations of the sponsor, the duration of the undertaking and the consequences of default, and stated that the undertaking would be binding notwithstanding any change in the sponsor’s personal circumstances.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-12", + "id": "scc-7944-10", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 29–30", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 24–25", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "I agree entirely with the parties that the determination of the mootness issue depends on the proper characterization of the controversy that exists between them. In this regard, the parties implicitly concede that if the characterization of the dispute as found by the Judge, i.e. “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date” (paragraph 45 of her Reasons), is correct, then the judicial review application is moot. However, they submit that the proper characterization is whether the appellants should be removed prior to the determination of their H&C application. At paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his submission as follows: 33. The correct characterization of the controversy, however, is whether an applicant should be removed prior to the happening of a particular event, such as prior to the determination of a pending H & C application. It is then not the passing of the removal date which renders the judicial review application moot, but the happening of the event. This characterization of whether removal is reasonably practicable prior to the happening of the event is entirely consistent with the enforcement officer’s mandate under section 48 of the IRPA to execute a removal order as soon as reasonably practicable. It is this characterization of the controversy that the Applications Judge should have adopted, and erred in failing to do so.\n\nSince the appellants’ H&C application had not been dealt with at the time of the hearing before the learned Applications Judge [and I am not aware of any determination having been made since Dawson J. rendered her decision], the parties take the position that the controversy still exists between them and thus that the matter is not moot.", - "current_to": "2009-03-13", + "text": "Section 108(2) of the former Immigration Act authorized the federal government to enter into agreements with the provinces for the purposes of implementing immigration programs. Section 114(1)(c) authorized the executive to create regulations with respect to sponsorships and s. 115 allowed the Minister to create forms necessary to implement the program (such Ministerial authority was the basis for the undertakings at issue here, which were drafted by the Department of Citizenship and Immigration and signed by each sponsor). Pursuant to s. 118(1) of the former Act, the federal government could assign an undertaking to a province in order to allow that province to recover social assistance payments from the sponsor directly. The new IRPA eliminated the need for such an assignment of the debt.\n\nThe collection procedure under the old Immigration Act was also more cumbersome than under the new IRPA . The former s. 118(2) required governments to obtain a judgment from a court of competent jurisdiction in order to enforce the sponsorship debt. Public monies spent as a result of a breach of an undertaking were deemed to be a “debt due to Her Majesty in right of Canada or in right of the province to which the undertaking is assigned” and “may be recovered from the person or organization that gave the undertaking”. Section 5(2)(g) of the old Regulations stated that default on an existing undertaking was a bar to additional sponsorships (Immigration Regulations, 1978, SOR/78-172, as amended by SOR/97-145, s. 3).", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-13", + "id": "scc-7944-11", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 31–33", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 26–28", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, the parties have properly characterized the nature of the controversy which exists between them. I find support for this view in the Reasons given by Strayer D.J. in Amsterdam v. M.C.I., 2008 FC 244, where he dismissed an application for judicial review of the decision of an enforcement officer who had refused to defer the applicant’s removal from Canada. Although Strayer J. was of the view that on the facts before him, the judicial review application was moot, he nonetheless exercised his discretion to decide the application on its merits.\n\nIn Amsterdam, supra, the applicant was scheduled to be removed from Canada on June 6, 2007. On May 31 of that year, he sought a deferral of his removal so as to allow him to attend a Family Court conference scheduled for July 31, 2007, and to see a medical specialist with whom he had an appointment on September 27, 2007. Notwithstanding this information, the enforcement officer advised the applicant on June 4, 2007, that it would not be appropriate to defer his removal from Canada.\n\nOn June 5, 2007, the applicant filed an application for leave and for judicial review and he applied for a stay of removal, which was successful. Leave to commence a judicial review application was subsequently granted and the application on its merits was heard by Strayer J. on February 12, 2008.", - "current_to": "2009-03-13", + "text": "In 2002, the IRPA made important changes to the rules governing the family immigration class. Section 14(2)(e) confers broad powers to make regulations with respect to sponsorship undertakings. Section 145(2) is central to the issue of the Minister’s discretion on this appeal. It states in relevant part: . . . an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights. The respondent sponsors contend that “may” is permissive and indicates, they say, the existence of a Crown discretion to collect or not to collect the debt.\n\nThe IRPA streamlined the enforcement of sponsorship debt. It is no longer necessary for the federal undertakings to be assigned to the provinces before they can be enforced by the province. Furthermore, s. 145(3) negates the effect of limitations statutes by prescribing that the debt may be recovered “at any time”.\n\nGovernments no longer even have to obtain a judgment to engage Federal Court processes to enforce the debt. Section 146 allows the Minister to certify the debt immediately or within 30 days of default, depending on the circumstances, and register that certificate with the Federal Court, giving it the same force as a judgment.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-14", + "id": "scc-7944-12", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 34–35", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 29–30", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "As I indicated earlier, Strayer J. believed that the application was moot. At paragraph 11 of his Reasons, he said the following: [11] I am satisfied that the judicial review of the Enforcement Officer’s refusal to defer removal is moot due to a stay having been issued by this Court to permit the Applicant’s presence in Canada for two events which have long since passed, the very events for which delay was refused in the decision under review. The evidence put before the Court was that it was necessary that the Applicant remain in Toronto to be present at a Family Court Case Conference in the Ontario Superior Court set for July 31, 2007 and for an appointment with a specialist which, by the date of the stay hearing, had been fixed for September 27, 2007. [Emphasis added]\n\nAs I also indicated earlier, Strayer J. then went on, notwithstanding his view on the mootness issue, to deal with the merits of the application. After concluding that the enforcement officer’s decision was not unreasonable, he dealt with a request by the applicant that he certify a question very similar to the one certified in this appeal. The question read as follows: Where an applicant has filed an application for leave and judicial review of a decision not to defer the implementation of a Removal Order outstanding against him or her, does the fact that the applicants’ removal is subsequently halted by operation of a stay Order issued by this Court render the underlying judicial review application moot?", - "current_to": "2009-03-13", + "text": "The new Regulations provide in s. 135 that default begins when the government makes a payment and ends when the sponsor either reimburses the government “in full or in accordance with an agreement with that government”, or when the sponsor ceases to be in breach of the undertaking. The Attorney General of Canada takes comfort from the IRPA ’s elimination of any judicial process prior to the Minister’s authority to invoke Federal Court enforcement. The respondent sponsors, on the other hand, argue that elimination of prior judicial authorization makes it all the more important that the Minister act fairly and get the facts straight before initiating what they regard as an overly harsh statutory collection procedure. III. Judicial History A. Ontario Superior Court of Justice (Wilson J.), No. 07-CV-331628PD3, September 11, 2008, unreported\n\nThe applications judge found that the IRPA and its Regulations, when viewed as a whole, showed a Parliamentary intent to create a collection procedure that was “purely administrative in nature” (para. 52). The government is not vested with a discretion to consider on a case-by-case basis whether or not to enforce the debt. The government’s duty is to collect. The legislation does not impose any duty of fairness towards sponsors in default. Neither the statute nor the regulations permit sponsors to make submissions before their debts are collected (para. 54).", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-15", + "id": "scc-7944-13", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 36–37", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 31–33", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Strayer J. was of the view that the above question ought not to be certified. In so concluding, he gave the following explanation at paragraph 15 of his Reasons: [15] Nevertheless, I am not prepared to certify such a question. In the first place if I did, and an appeal were taken, an answer to this question would not be determinative of this case because I have determined that the judicial review should also be dismissed on its merits apart from being moot. Secondly, with respect I do not think it is a serious question requiring an answer. There seems to be a wide measure of consensus in this Court, indicated in the cases cited above, that such a question should be answered in the affirmative. I find it hard to see how it could be otherwise: if the complaint in the judicial review is that the Enforcement Officer did not defer removal until the occurrence of some event which the Applicant considered justified the deferral, and as a result of a stay granted by this Court that event has in the meantime occurred. In such circumstances there can be no practical effect of a judicial review decision. [Emphasis added]\n\nAs I understand Strayer J.’s Reasons, it is the passing of the events in respect to which the applicant was seeking a deferral of his removal, i.e. a Family Court conference and a medical appointment, which rendered the judicial review application moot. In those circumstances, as Strayer J. says above, “… there can be no practical effect of a judicial review decision”. I cannot but agree with that statement in light of the facts before the learned Judge. It is clear, however, that Strayer J. did not conclude that the application before him was moot simply because the removal date had come and gone, which is the position adopted by the Applications Judge.", - "current_to": "2009-03-13", + "text": "According to the applications judge, the sponsorship agreements are governed by contract law (para. 55). The sponsors entered into the agreements voluntarily (para. 57). The contractual undertakings should be construed in light of the purpose of the statute which is debt collection (para. 58). The doctrine of frustration does not apply (para. 59). The Applicants were aware that they would be liable if a sponsored relative became financially dependent on the state (para. 59). The applications for various declarations sought by the sponsors were therefore dismissed. B. Ontario Court of Appeal (Laskin, Simmons and Lang JJ.A.), 2009 ONCA 794, 98 O.R. (3d) 1\n\nOn appeal, the issues were restricted to administrative law grounds, specifically: (1) whether the Acts confer upon the governments a case-by-case discretion concerning the recovery of sponsorship debt; (2) whether Canada and Ontario abused this discretion; (3) whether Canada and Ontario owe sponsors a duty of procedural fairness; and (4) whether the undertakings given under the old Act are enforceable under the new Act. The Court of Appeal allowed the appeal.\n\nOn the first issue, the Court of Appeal found that both Acts confer a case-by-case discretion in the collection of sponsorship debt (para. 89). In construing s. 118(2) of the old Act and s. 145(2) of the new Act, the word “may” indicates some degree of discretion on the part of the Minister.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-16", + "id": "scc-7944-14", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 38–40", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 34–36", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Thus, in my view, since the event which the appellants invoke in seeking a deferral has not occurred, I cannot see how it can be said that there is no existing controversy between the parties and that no practical effect can result from a decision on the judicial review. While the specific timing of the removal arrangements which had been made prior to the issuance of the stay by O’Keefe J. is no longer valid, this does not, in my respectful view, render the issues raised in the judicial review application moot. The concrete or real controversy between the parties, i.e. the execution of the removal order prior to the determination of the appellants’ H&C application, remains alive.\n\nI will briefly examine what effect a decision on the merits of the appellants’ judicial review application might have. Prior to such a determination, the appellants could not be removed by reason of the stay granted by O’Keefe J. However, different consequences will follow, depending on the determination of the application.\n\nShould this Court decide the judicial review in favour of the appellants, the matter would then be remitted to an enforcement officer for redetermination in the light of the Court’s Reasons. On redetermination, the enforcement officer might grant the request for deferral until the H&C application has been dealt with. As a result of such a determination, the appellants would not be removed until a negative decision, if that be the case, had been rendered on their H&C application. On the other hand, the enforcement officer might again refuse to defer removal and the appellants might challenge that decision by way of a new judicial review application.", - "current_to": "2009-03-13", + "text": "According to the Court of Appeal, the applications judge erred “in part, because she failed to take proper account of the Regulations and forms” which are “essential components of an integrated [immigration] scheme” (paras. 91 and 95). The Court of Appeal noted that since 1999 the undertakings have included a provision that allowed a sponsor to negotiate a settlement with the government concerned (para. 98). In addition, the undertakings under both Acts stated that the governments “may” choose not to collect the debt (para. 103). Since Parliament did not eliminate this discretion in the 2002 amendments, it is reasonable to infer that it intended there to be some flexibility in terms of debt collection.\n\nOn the second issue, the Court of Appeal went further. In light of the wording of the undertaking, Ontario had improperly “fettered or abused the exercise of its discretion” in part because its policy required that a “‘defaulting sponsor . . . repay the full amount of the debt’” (paras. 125-26). This prohibited a settlement for less than the full amount, an option which is expressly contemplated by s. 135(b)(i) of the new Regulations. Since the policy required full repayment in every case, regardless of the circumstances, this amounted to an improper fettering of the Minister’s discretion under the statute (para. 127).\n\nFurthermore, Ontario’s policy of only granting deferrals based on “documented extraordinary circumstances” was a more onerous standard than the existence merely of “appropriate circumstances” contemplated by the undertakings (paras. 132-33), and was to that extent invalid.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-17", + "id": "scc-7944-15", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 41–43", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 37", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Should the Court dismiss the judicial review application on its merits, the stay order would no longer be in effect and a new removal date would most likely be scheduled. While it is true that the appellants could once again ask the enforcement officer for a deferral, new facts, in my view, would have to be put forward, failing which the likely scenario is that the enforcement officer would dismiss the request for deferral. It is also possible that absent new facts, the appellants would not seek a deferral and would leave Canada.\n\nI might add that should the appellants, in the absence of additional material facts, seek a deferral which results in a refusal by the enforcement officer, and should the appellants, in those circumstances, seek to obtain leave to commence a judicial review application and to obtain a stay of removal, it would certainly be open to the Federal Court to take the view that the appellants’ proceedings constitute an abuse of process and deal with those proceedings accordingly.\n\nI am therefore of the view that should this Court dispose of the judicial review application on its merits, it cannot be said that the parties would be in the same position as if the Court had dismissed the application for mootness. I would also add that mootness does not necessarily follow because a decision on the merits will not entirely settle the debate between the parties.", - "current_to": "2009-03-13", + "text": "On the third issue, the Court of Appeal held that the governments owed a duty of procedural fairness to the sponsors (para. 135). It was held that the government was obliged to provide “a process” for individual sponsors to explain their relevant personal and financial circumstances, to consider those circumstances, and to inform the sponsor that their submissions had been considered and to tell them of the decision (para. 147). The provision in the undertakings that the government will consider “other appropriate circumstances” in exercising its discretion created a legitimate expectation that the government will consider their individual circumstances (para. 148). Finally, the court held that undertakings given under the old Immigration Act are enforceable under the IRPA . IV. Analysis", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-18", + "id": "scc-7944-16", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 44–46", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 38", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "A final comment on this issue. In Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, at paragraphs 29 to 42, the Supreme Court identified three factors that a court should consider in deciding whether or not to exercise its discretion to hear the merits of an action or an application for judicial review which it finds to be moot: (1) the existence of an adversarial relationship between the parties; (2) the concern for judicial economy; and (3) the need for the court not to intrude into the legislative sphere.\n\nIn the present matter, it is undisputed that there remains an adversarial relationship between the parties with respect to the execution of a removal order prior to the determination of an H&C application. With respect to judicial economy, a decision from this Court on whether or not a pending H&C application and the interests of Canadian-born children in that specific context warrant a deferral of removal will certainly provide guidance to parties in future cases as well as to the parties in this appeal. Furthermore, these cases are of a recurring nature, in that the dismissal of a judicial review application for mootness means that the case will be returned to the enforcement officer to set a new date for removal, which will likely trigger a new request for deferral of removal and potentially a new application for a stay of removal. Lastly, a decision on the merits of the application will clearly not intrude into the legislative scheme.\n\nBearing in mind the factors identified by the Supreme Court in Borowski, supra, had I been of the view that the application was moot, I would have had no hesitation in deciding that this Court ought to deal with the merits of the application.", - "current_to": "2009-03-13", + "text": "The doctrine of procedural fairness has been a fundamental component of Canadian administrative law since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, where Chief Justice Laskin for the majority adopted the proposition that “in the administrative or executive field there is a general duty of fairness” (p. 324). Six years later this principle was affirmed by a unanimous Court, per Le Dain J.: “. . . there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual”: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653. The question in every case is “what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context” (Cardinal, at p. 654). See also Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 669; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 20; and Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 18. More recently, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ. adopted the proposition that “[t]he observance of fair procedures is central to the notion of the ‘just’ exercise of power” (para. 90) (citing D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 7-3).", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-19", + "id": "scc-7944-17", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 47–48", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 39–40", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "I now turn to the second issue. C. Did the Enforcement Officer Err in Refusing to Defer the Appellants’ Removal from Canada Pending a Determination of Their Outstanding H&C Application?\n\nIn dealing with the enforcement officer’s discretion to defer removal pursuant to section 48 of the Act, it is important to keep in mind the wording of that provision, which is as follows: 48. (1) A removal order is enforceable if it has come into force and is not stayed. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as soon as is reasonably practicable. [Emphasis added] 48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis. (2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. [Non souligné dans l’original] Thus, where a removal order is enforceable, any person subject thereto must leave the country and the enforcement officer is bound to enforce the order “as soon as is reasonably practicable”.", - "current_to": "2009-03-13", + "text": "Accordingly, while the content of procedural fairness varies with circumstances and the legislative and administrative context, it is certainly not to be presumed that Parliament intended that administrative officials be free to deal unfairly with people subject to their decisions. On the contrary, the general rule is that a duty of fairness applies. See G. Régimbald, Canadian Administrative Law (2008), at pp. 226-27, but the general rule will yield to clear statutory language or necessary implication to the contrary: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at para. 22. There is no such exclusionary language in the IRPA and its predecessor legislation.\n\nIn determining the content of procedural fairness a balance must be struck. Administering a “fair” process inevitably slows matters down and costs the taxpayer money. On the other hand, the public also suffers a cost if government is perceived to act unfairly, or administrative action is based on “erroneous, incomplete or ill-considered findings of fact, conclusions of law, or exercises of discretion” (Brown and Evans, at p. 7-3; see also D. J. Mullan, Administrative Law (2001), at p. 178).", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-20", + "id": "scc-7944-18", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 49–50", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 41", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "It is trite law that an enforcement officer’s discretion to defer removal is limited. I expressed that opinion in Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936 (T.D.) (QL), 7 Imm.L.R. (3d) 141, at paragraph 12: [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is \"reasonably practicable\" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year.\n\nI further opined that the mere existence of an H&C application did not constitute a bar to the execution of a valid removal order. With respect to the presence of Canadian-born children, I took the view that an enforcement officer was not required to undertake a substantive review of the children’s best interests before executing a removal order.", - "current_to": "2009-03-13", + "text": "Once the duty of procedural fairness has been found to exist, the particular legislative and administrative context is crucial to determining its content. We are dealing here with ordinary debt, not a government benefits or licensing program. It is clear from the legislative history of the IRPA that over the years Parliament has become increasingly concerned about the shift to the public treasury of a significant portion of the cost of supporting sponsored relatives. Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse. Sponsors undertake these obligations in writing. They understand or ought to understand from the outset that default may have serious financial consequences for them.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-21", + "id": "scc-7944-19", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 51", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 42", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Subsequent to my decision in Simoes, supra, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a removal order, to address the issue of an enforcement officer’s discretion to defer a removal. After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’s discretion to defer. In Reasons which I find myself unable to improve, he made the following points: - There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths. - The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission. - In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment.", - "current_to": "2009-03-13", + "text": "A number of factors help to determine the content of procedural fairness in a particular legislative and administrative context. Some of these were discussed in Cardinal, a case involving an inmate’s challenge to prison discipline which stressed the need to respect the requirements of effective and sound public administration while giving effect to the overarching requirement of fairness. The duty of fairness is not a “one-size-fits-all” doctrine. Some of the elements to be considered were set out in a non-exhaustive list in Baker to include (i) “the nature of the decision being made and the process followed in making it” (para. 23); (ii) “the nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (para. 24); (iii) “the importance of the decision to the individual or individuals affected” (para. 25); (iv) “the legitimate expectations of the person challenging the decision” (para. 26); and (v) “the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances” (para. 27). Other cases helpfully provide additional elements for courts to consider but the obvious point is that the requirements of the duty in particular cases are driven by their particular circumstances. The simple overarching requirement is fairness, and this “central” notion of the “just exercise of power” should not be diluted or obscured by jurisprudential lists developed to be helpful but not exhaustive.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-22", + "id": "scc-7944-20", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 51–53", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 43–44", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. - Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application. I agree entirely with Mr. Justice Pelletier’s statement of the law.\n\nWith these principles in mind, I now turn to the enforcement officer’s decision.\n\nIt is clear from the enforcement officer’s decision that she considered all of the relevant facts which were before her. First, she addressed the fact that the appellants had a pending H&C application. She correctly noted that the filing of such an application, at a late stage in the removal process, was not per se an impediment to removal. She remarked that the appellants had been informed in 2004 that no H&C application had been filed by them, contrary to what they apparently believed, and that they waited until 2006 to make their application. As a result, she was of the view that deferral on that ground was not warranted.", - "current_to": "2009-03-13", + "text": "Here the nature of the administrative decision is a straightforward debt collection. Parliament has made clear in the statutory scheme its intention to avoid a complicated administrative review process. Nevertheless, as the Court of Appeal correctly observed, the nature of the decision in this case is final and specific in nature. It may result in the filing of a ministerial certificate in the Federal Court which is enforceable as if it were a judgment of that court. The IRPA does not provide a mechanism for sponsors to appeal the enforcement decision. Here, as in Knight, the absence of other remedies militates in favour of a duty of fairness at the time of the enforcement decision (see also Baker, at para. 24). The effect of the decision on the sponsors is significant. Sponsorship debts can be very large and accumulate quickly, as is evident from the amounts the respondents are said to owe the government in this case.\n\nThe legislation leaves the governments with a measure of discretion in carrying out their enforcement duties, and in this case Ontario’s procedure is perfectly compatible with both efficient debt collection and fairness to the defaulting sponsors. I will deal separately below with the issue of legitimate expectations.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-23", + "id": "scc-7944-21", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 54–56", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 45–46", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "The enforcement officer then turned her attention to the best interests of the children. She was of the view that if the children left Canada with their parents, “any kind of emotional disturbance the children may suffer due to their removal from Canada will likely be one of a temporary nature”. She also noted that the children were young and that they could easily adapt to a new environment. She also noted that no evidence had been adduced that the children could not enrol in an English medium school where they could learn English as a first or second language. Lastly, she indicated that since both parents would be present in the children’s lives in Argentina and that the appellants’ parents also lived in Argentina, the children would have adequate emotional support and an existing support base in their new country.\n\nThe enforcement officer concluded her decision by making it clear that had there been a true impediment to removal or if a decision on the H&C application had been imminent, she would have granted a deferral.\n\nIn making their submission that the enforcement officer made reviewable errors, the appellants make the following points.", - "current_to": "2009-03-13", + "text": "In these circumstances I believe the content of the duty of procedural fairness does not require an elaborate adjudicative process but it does (as stated earlier) oblige a government, prior to filing a certificate of debt with the Federal Court, (i) to notify a sponsor at his or her last known address of its claim; (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; and (iv) to notify the sponsor of the government’s decision. Given the legislative and regulatory framework, the non-judicial nature of the process and the absence of any statutory right of appeal, the government’s duty of fairness in this situation does not extend to providing reasons in each case (Baker, at para. 43). This is a situation, after all, merely of holding sponsors accountable for their undertakings so that the public purse would not suffer by reason of permitting the entry of family members who would otherwise not qualify for admission.\n\nOntario has adopted a collection policy along these lines. There is no evidence before us that the minimal procedural protections afforded by Ontario have in any way undermined or frustrated the debt collection objective or resulted in unfairness to family sponsors. A. The Contract Argument", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-24", + "id": "scc-7944-22", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 57", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 47–48", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "With respect to the best interests of the children, they state that the officer ought to have deferred their removal pending the determination of their H&C application so as to fulfill Canada’s obligations under the Convention on the Rights of the Child. In my view, this argument is without merit. The enforcement officer considered the children’s best interests and concluded that no serious practical impediment existed to prevent removal of their parents to Argentina. The fact that the appellants intend to take their children with them to Argentina and that the children might not be able to return until their parents regularize their status in Canada or until they become adults is not, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegal immigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-born children (see: Legault v. M.C.I, 2002 FCA 125, para. 12; see also with respect to international law: Baker, supra; Langner v. M.E.I., [1995] F.C.J. No. 469 (C.A.) (QL)). I might add that the officer went further than required in her consideration of the children’s best interests. As I stated in Simoes, supra, an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order. I believe that Pelletier J.A.’s Reasons in Wang, supra, support this view.", - "current_to": "2009-03-13", + "text": "The Attorneys General resist the application of a duty of procedural fairness in part on a theory that the claims against the sponsors are essentially contractual in nature. Dunsmuir, they say, stands for the proposition that procedural fairness does not apply to situations governed by contract. However, in this case, unlike Dunsmuir, the governments’ cause of action is essentially statutory.\n\nDunsmuir dealt with an employment relationship that was found by the Court to be governed by contract. The fact the contracting employee was a senior public servant did not turn a private claim for breach of contract into a public law adjudication. Here, on the other hand, the terms of sponsorship are dictated and controlled by statute. The undertaking is required by statute and reflects terms fixed by the Minister under his or her statutory power. The Attorneys General characterize sponsors as mere contract debtors but even contract debtors are ordinarily entitled to receive notice of a claim and the opportunity to defend against it.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-25", + "id": "scc-7944-23", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 58–59", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 49", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "With respect to their pending H&C application, the appellants submit that the enforcement officer erred in failing to have regard to the special circumstances surrounding their application. They say that the issue was not whether they had submitted an application in 2003 or 2004, but rather that they had attempted, through their former attorney, to submit such an application in March 2003, adding that for reasons unknown to them, the application had never been received in Vegreville. They also say that it is only in 2006 that they became aware of the fact that their March 2003 application had never been received. The appellants further point out that a new delay occurred when a second application in September 2006 was returned to them by reason of insufficient funds, which application they resubmitted in early December 2006. It is for these reasons, the appellants submit, that their attorneys requested that their H&C application be expedited because of almost a four year delay due to no fault on their part.\n\nThus, in the appellants’ submission, the enforcement officer asked herself the wrong question when she focussed her attention on whether the “original” H&C application had been submitted in 2003 or 2004, and on the fact that their second application had been filed late in the day.", - "current_to": "2009-03-13", + "text": "The existence of the undertaking does not extricate the present disputes from their public law context. There is ample precedent for contracts closely controlled by statute to be enforced as a matter of public law. In Rhine v. The Queen, [1980] 2 S.C.R. 442, for example, the Court dealt with two appeals for breach of contract: the first was a claim to recover an advance payment under the Prairie Grain Advance Payments Act, and the second was a government claim to recover principle and interest owing on a student loan made pursuant to the Canada Student Loans Act. The defendants took the position that enforcement of a private law contract is a matter of provincial law and thus outside the jurisdiction of the Federal Court. In both appeals, the jurisdictional challenge was rejected. The contracts were creatures of statute. Laskin C.J. noted: What we have here is a detailed statutory framework under which advances for prospective grain deliveries are authorized as part of an overall scheme for the marketing of grain produced in Canada. An examination of the Prairie Grain Advance Payments Act itself lends emphasis to its place in the overall scheme. True, there is an undertaking or a contractual consequence of the application of the Act but that does not mean that the Act is left behind once the undertaking or contract is made. At every turn, the Act has its impact on the undertaking so as to make it proper to say that there is here existing and valid federal law [i.e. the statute] to govern the transaction which became the subject of litigation in the Federal Court. [p. 447] See also Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage), 2006 FCA 190, [2007] 2 F.C.R. 475, at para. 72; Canada v. Crosson (1999), 169 F.T.R. 218, at para. 36.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-26", + "id": "scc-7944-24", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 60–63", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 50–52", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, these arguments cannot succeed. First, I have not been persuaded that the enforcement officer made a reviewable error in her review and consideration of the evidence. What the appellants are asking us, in effect, is to reassess the evidence so as to reach a different conclusion. In my view, that is not open to us. Second, in the light of the principles enunciated in both Simoes, supra and Wang, supra, I fail to see on what ground this Court could interfere with the enforcement officer’s decision.\n\nI therefore conclude that the enforcement officer’s decision to refuse deferral of the appellants’ removal from Canada was reasonable and that the decision must stand.\n\nThis is sufficient to dispose of the appeal. However, before concluding, I feel compelled to make a few additional remarks.\n\nIt is important to note that in concluding that a deferral was not warranted in the circumstances before her, the enforcement officer emphasized the fact that the appellants had failed to report for their pre-removal interviews of January 21, 2006. The enforcement officer also emphasized the fact that it had been necessary to issue warrants against the appellants, which were executed in March and July of 2006. She could also have emphasized the fact that the appellants, in order to delay their removal scheduled for January 18, 2007, had undertaken to leave the country with their children on February 15, 2007, which undertaking they failed to respect. The enforcement officer could have also considered relevant the fact that the departure orders made against the appellants at the time they filed their refugee claims had become effective on May 30, 2002.", - "current_to": "2009-03-13", + "text": "Similarly, while the sponsors’ undertakings here have some contractual aspects, it is the statutory framework that closely governs the rights and obligations of the parties and opens the door to the requirements of procedural fairness. As stated earlier, s. 145(2) of the IRPA makes any debt owing pursuant to an undertaking payable to and recoverable by either federal or provincial Crown. Furthermore, s. 132(1) of the Regulations makes sponsors liable for any social assistance paid to the sponsored relative. Section 135 of the Regulations defines “default”. Finally, the enforcement of the undertaking in Federal Court is governed by s. 146 of the IRPA . Just as in Rhine, the undertaking at every turn is a creature of statute.\n\nThe situation here does not come close to the rather narrow Dunsmuir employment contract exception from the obligation of procedural fairness. As the Dunsmuir majority itself emphasized: This conclusion does not detract from the general duty of fairness owed by administrative decision makers. Rather it acknowledges that in the specific context of dismissal from public employment, disputes should be viewed through the lens of contract law rather than public law. [Emphasis added; para. 82.] Dunsmuir was not intended to and did not otherwise diminish the requirements of procedural fairness in the exercise of administrative authority. B. The Statutory Exclusion Argument\n\nThere is no doubt that the duty of fairness, being a doctrine of the common law, can be overridden by statute. The Attorneys General argue that the legislation does so in the present case. I do not agree. Such a conclusion is not consistent with the legislative text, context or purpose. (1) The Statutory Text", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-27", + "id": "scc-7944-25", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 64", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 53", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Events of this type, i.e. where persons fail to comply with the requirements of the Act or act in a way so as to prevent the enforcement thereof, should always be high on the list of relevant factors considered by an enforcement officer. It is worth repeating what this Court said at paragraph 19 of its Reasons in Legault, supra. Although the issue before the Court in Legault, supra, pertained to the exercise of discretion in the context of an H&C application, the words of Décary J.A. are entirely apposite to the exercise of discretion by an enforcement officer: [19] In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. [Emphasis added]", - "current_to": "2009-03-13", + "text": "Central to the collection procedure is s. 145(2) of the new Act and, to a lesser extent, its predecessor s. 118(2) of the old Act, which provide (with emphasis added) as follows: 145. . . . (2) [Debts due — sponsors] Subject to any federal-provincial agreement, an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights. 118. . . . (2) [Recovery for breach of undertaking] Any payments of a prescribed nature made directly or indirectly to an immigrant that result from a breach of an undertaking referred to in subsection (1) may be recovered from the person or organization that gave the undertaking in any court of competent jurisdiction as a debt due to Her Majesty in right of Canada or in right of the province to which the undertaking is assigned. The statements that the “sponsor is required to pay” and that the amount owing is “payable on demand” leave no doubt about the existence of a statutory debt. The words “may be recovered” occur in both Acts.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-28", + "id": "scc-7944-26", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 65", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 54–56", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Thus, if the conduct of the person seeking a deferral of his or her removal either discredits him or creates a precedent which encourages others to act in a similar way, it is entirely open to the enforcement officer to take those facts into consideration in determining whether deferral ought to be granted. Neither enforcement officers nor the courts, for that matter, should encourage or reward persons who do not have “clean hands”.", - "current_to": "2009-03-13", + "text": "The applications judge thought the word “may” simply enables either level of government to enforce the undertaking. The point, however, is that nothing in the relevant sections explicitly requires Her Majesty to pursue collection of debts irrespective of the circumstances. Legislative use of the word “may” usually connotes a measure of discretion (Interpretation Act , R.S.C. 1985, c. I-21, s. 11 ). This is as one would expect. It seems too clear for argument that Parliament intended the federal and provincial Crowns to deal with debt collection in a rational, reasonable and cost-effective way. The Attorney General of Canada concedes that Ministers have a “management discretion” in the conduct of departmental affairs. See, e.g., Optical Recording Corp. v. Canada, [1991] 1 F.C. 309 (C.A.), at p. 323. Effective management requires some measure of flexibility. Flexibility necessarily entails discretion.\n\nHowever circumscribed, the existence of a discretion attracts a level of procedural fairness appropriate to its exercise. (2) The Statutory Context\n\nAs the Attorneys General point out, several provisions of the IRPA affirm the obligatory nature of the undertaking and strengthen enforcement measures as compared to the old Immigration Act. Nevertheless, the evidence that Parliament intended in the new Act to facilitate the collection of sponsorship debts does not mean it intended this to be done unfairly.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-29", + "id": "scc-7944-27", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 66", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 57", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "One last remark. In her discussion of the mischief which might arise as a result of the view that applications such as the one before us in this appeal are moot by reason of the passing of the scheduled removal date, Madam Justice Dawson made a number of highly relevant remarks. One of these remarks is found at paragraph 65 of her Reasons, where she says: [65] Further, the potential for abuse will be mitigated significantly by the Court's continued discipline when considering stay requests and, where a stay is granted, by careful consideration by the CBSA, before new removal arrangements are made, of the serious issue identified by the Court. It should be remembered that, for a stay to be granted, the Court will have identified at least one issue that carries with it the likelihood of success on the underlying application. It is not enough for the Court to simply find that an issue is not frivolous or vexatious. (See: Wang, cited above). […] [Emphasis added] These comments take me back to Pelletier J.A.’s Reasons in Wang, supra, where he dismissed the motion before him for a stay of removal because the applicant had not satisfied him that the underlying application raised a serious issue. This conclusion was the result of his view that on such a motion, in determining the “serious issue” prong of the tripartite test enunciated in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (and adopted by this Court for the purposes of determining applications for a stay of removal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587), the Judge ought to “go further and closely examine the merits of the underlying application” (paragraph 10 of his Reasons).", - "current_to": "2009-03-13", + "text": "The Regulations are also an important part of the statutory context. In Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, Deschamps J. noted that regulations “can assist in ascertaining the legislature’s intention”, particularly where the statute and the regulations form an integrated scheme (para. 35). See also Greater Toronto Airports Authority v. International Lease Finance Corp. (2004), 69 O.R. (3d) 1 (C.A.), at paras. 102-4; Ward-Price v. Mariners Haven Inc. (2001), 57 O.R. (3d) 410 (C.A.), at para. 29. Professor Sullivan notes at p. 370 of her treatise that “[w]hen regulations are made to complete the statutory scheme, they are clearly intended to operate together [with the enabling statute] and to be mutually informing” (Sullivan on the Construction of Statutes (5th ed. 2008) (emphasis added)). Section 2(2) of the IRPA states that references to “this Act” include the Regulations.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-30", + "id": "scc-7944-28", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 66–68", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 58–59", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "In other words, the Judge should take a hard look at the issue raised in the underlying application.\n\nWhile I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of a motion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant the granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, supra, and, particularly, in Wang, supra. Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not have such a case to put forward.\n\nHad O’Keefe J. turned his mind to the limited nature of the enforcement officer’s discretion and to the applicable standard of review, he would not have concluded that the judicial review application raised a serious issue and, hence, would not have granted a stay.", - "current_to": "2009-03-13", + "text": "Regulations under the IRPA are made under a broad authority with respect to a number of matters including family class immigration and sponsorship undertakings. Section 135 of the Regulations, which informed the Court of Appeal’s finding of a Ministerial discretion states: 135. [Default] For the purpose of subparagraph 133(1)(g)(i), the default of a sponsorship undertaking . . . (b) ends, as the case may be, when (i) the sponsor reimburses the government concerned, in full or in accordance with an agreement with that government, for amounts paid by it, or (ii) the sponsor ceases to be in breach of the obligation set out in the undertaking. The Attorney General of Canada argues that this provision does not mean that the government can make “an agreement” to forgive the debt, which he says can only be done under the terms of the Financial Administration Act , R.S.C. 1985, c. F-11, s. 23 (“FAA”). Rather, he says, this provision merely defines default for the purpose of a person’s eligibility to sponsor additional family members.\n\nThe fact is however that the Regulations do distinguish between payment “in full” and payments “in accordance with an agreement with that government”. This can only mean that the government is authorized to limit enforcement to whatever amount is agreed upon with the sponsor, and no floor or ceiling (short of forgiveness) is fixed by the Regulations. The amount and terms of repayment are therefore within the discretion of the government decision maker. An agreement requiring a sponsor to pay $20 a month on a $20,000 debt may never result in the full amount being paid, but it would nevertheless be an “agreement” within s. 135(b)(i) which governments are authorized to make.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-31", + "id": "scc-7944-29", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 69–72", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 60–61", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "It is also clear, in my respectful opinion, that there was no basis for him to conclude that irreparable harm would occur if the removal order was not stayed. As this Court and the Federal Court have constantly repeated, one of the unfortunate consequences of a removal order is hardship and disruption of family life. However, that clearly does not constitute irreparable harm. To paraphrase the words of Pelletier J.A. found at paragraph 88 of his Reasons in Wang, supra, family hardship is the unfortunate result of a removal order which can be remedied by readmission if the H&C application is successful. Further, the fact that the appellants’ children might have to pursue their education in Spanish, because of their parents’ removal to Argentina, clearly does not constitute irreparable harm.\n\nAs a result, I would dismiss the appeal and I would answer the certified question as follows: Because the underlying application for landing remains outstanding at the date the Court considers the application for judicial review, there remains a “live controversy” between the parties and, as a result, the matter is not rendered moot by the passing of the scheduled removal date. “M. Nadon” J.A. “I concur. Alice Desjardins J.A.” BLAIS J.A. (Reasons concurring in the result)\n\nI have read the reasons of my colleague, Nadon J.A., and I respectfully disagree in part.\n\nI will rely on the facts as presented by the Federal Court judge, Justice Dawson, and my colleague in lieu of reproducing them here.", - "current_to": "2009-03-13", + "text": "The Attorney General of Canada contends that agreements for less than the full amount would be tantamount to a write-off in violation of the procedures set out in the FAA. However, in my view, what is contemplated in s. 135(b)(i) of the Regulations is not a write-off but “agreed” levels of deferred enforcement. The FAA is a statute of very general application. It does not preclude Parliament from enacting more specialized legislative schemes for the management and enforcement of debts owed to the Crown under particular statutory programs. The IRPA is an example of such a specialized collection regime.\n\nUnlike the Court of Appeal, I interpret the IRPA and its regulations without reference to the terms of the sponsorship undertakings themselves, which are drafted by the Minister and his officials and can be (and are) modified from time to time. At best the undertakings reflect an administrative interpretation of the legislative framework. It would be different in the case of forms that are actually appended to statutes, and which therefore carry the authority of Parliament, which is not the case here. See Houde v. Quebec Catholic School Commission, [1978] 1 S.C.R. 937, at p. 947; Sullivan, at pp. 408-9. (3) The Statutory Purpose", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-32", + "id": "scc-7944-30", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 73–76", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 62", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "With respect to my colleague’s analysis of the enforcement officer’s refusal to defer the appellants’ removal, I agree. The determination made by the enforcement officer was well within her narrow discretion, was well reasoned and was within the parameters of previous statements of this Court and the Court below.\n\nWith respect to my colleague’s strong statement regarding the granting of a stay on the basis that the pending judicial review of the enforcement officer’s refusal constituted a serious issue, I firmly agree with both my colleague and with Justice Dawson. Recently, claimants have entered into an abusive cycle of deferral requests, judicial review applications and stay of removal applications. This abusive cycle can be mitigated if judges considering stay applications properly determine whether a serious issue exists by reviewing the judicial review application for at least one issue with a probability of success. The judicial review underlying the application for a stay of removal in this case reveals little probability of success considering the enforcement officer’s discretion and the ample support she cites in her reasons. The decision granting the appellants’ stay has caused them to remain in Canada for an additional two years, allowing for their children to become more settled and for adaptation to be more difficult should the appellants and their children to return to Argentina.\n\nWith respect, I must disagree with my colleague’s conclusion in regards to the certified question of mootness.\n\nThe parties argue, and my colleague agrees, that the characterization of the root controversy of the judicial review involves whether the appellants should be removed prior to the determination of their pending humanitarian and compassionate (H&C) application.", - "current_to": "2009-03-13", + "text": "Section 3 of the IRPA states that the Act is intended to encourage family reunification but also recognizes that successful integration of immigrants involves “mutual obligations for new immigrants and Canadian society”, as follows: 3. (1) [Objectives — immigration] The objectives of this Act with respect to immigration are . . . (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; . . . (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society. . . . (3) [Application] This Act is to be construed and applied in a manner that . . . (f) complies with international human rights instruments to which Canada is signatory. Debt collection without any discretion in relation either to sponsors or their relatives would not advance the purposes of the IRPA . It would hardly promote “successful integration” to require individuals to remain in abusive relationships. Nor would the attempted enforcement of a debt against individuals without means to pay further the interest of “Canadian society”. Forcing a sponsor into bankruptcy may or may not deliver a short-term return, but hardly enhances the bankrupt’s chances of becoming a positive contributor to Canadian society. Excessively harsh treatment of defaulting sponsors may risk discouraging others from bringing their relatives to Canada, which would undermine the policy of promoting family reunification.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-33", + "id": "scc-7944-31", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 77–78", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 62–64", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "While it is true that the bases of the appellants’ deferral request were the best interest of their children and the determination of their H&C application, the decision for review in this case is whether the enforcement officer properly refused to defer the appellants’ removal in January, 2007. It is not whether the enforcement officer properly determined that the removal would at no time take place before the determination of the H&C application. This is clear from the enforcement officer’s notes to file, where she wrote: In conclusion, this officer realizes that she has limited discretion to defer removal. She would do so if there is [sic] an impediment to removal or if a decision was imminent on the H&C application. However, this is not the case.\n\nIt is of no consequence to determine whether the enforcement officer properly refused the request to defer in January, 2007 since that removal date has passed. In addition, the circumstances will have changed such that the enforcement officer’s conclusions may no longer be pertinent to the facts as they now stand. In my view, Justice Dawson was correct in characterizing the dispute as whether the appellants should have been required to leave on the scheduled removal date. Further, since the granting of a stay has allowed the appellants to receive the deferral that the enforcement officer refused, the review of the enforcement officer’s decision will not change the factual consequence.", - "current_to": "2009-03-13", + "text": "Clearly Parliament’s intent is to require the full debt to be paid if and when the sponsor is in a position to do so, even incrementally over many years pursuant to an “agreement” under s. 135(b)(i) of the Regulations. There is no reason why a sponsor who eventually wins a lottery should be relieved of the full measure of the debt at the expense of the taxpayer regardless of when the win occurs.\n\nNevertheless, in dealing with defaulting sponsors, the government must act fairly having regard to their financial means to pay and the existence of circumstances that would militate against enforcement of immediate payment (such as abuse). Ontario’s policy seeks to balance the interests of promoting immigration and family reunification on the one hand, and preventing abuse of the sponsorship scheme on the other. Discretion in the enforcement of sponsorship debt allows the government to further this objective.\n\nFor these reasons, I would reject the Attorneys General’s argument that the existence of an administrative discretion that attracts procedural fairness is excluded by the text, context and purpose of the legislation. C. Did Ontario Improperly Fetter the Exercise of Its Statutory Discretion?", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-34", + "id": "scc-7944-32", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 79–80", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 65–66", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "The parties argue that the controversy is whether the appellants should be removed prior to the determination of the H&C application. However, this was not the question before the enforcement officer. In fact, the conclusion of the enforcement officer regarding the lack of imminence of a determination on the H&C application makes it clear that her decision was temporally based.\n\nBy virtue of section 48(2) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 29 (IRPA), once a “removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.” I agree with my colleague that jurisprudence is conclusive that the enforcement officer’s discretion is limited. However, ultimately an enforcement officer is intended to do nothing more than enforce a removal order. While enforcement officers are granted the discretion to fix new removal dates, they are not intended to defer removal to an indeterminate date. On the facts before us, the date of the decision on the H&C application was unknown and unlikely to be imminent, and thus, the enforcement officer was being asked to delay removal indeterminately. An indeterminate deferral was simply not within the enforcement officer’s powers. (my emphasis)", - "current_to": "2009-03-13", + "text": "The Court of Appeal noted that “[d]iscretion is fettered or abused when a policy is adopted that does not allow the decision-maker to consider the relevant facts of the case, but instead compels an inflexible and arbitrary application of policy” (para. 124). The court concluded that the Ontario collection policy conflicts with the intended scope of the discretion. With respect, I do not agree that there is a conflict. As discussed earlier, the legislation allows the Minister to defer but not forgive sponsorship debt. This is also Ontario’s policy. The policy provides that “[t]he defaulting sponsor is required to repay the full amount of debt. There is no forgiveness of the debt by the Ministry”.\n\nThe federal Minister of Citizenship and Immigration can change the content of the undertakings, as indeed he has over the years, just as the provincial Minister of Community and Social Services changes the enforcement policy from time to time. Policies are necessary to guide the action of the multitude of civil servants who operate government programs. The Minister is entitled to set policy within legal limits. It cannot be said that the Ontario policy here so “fetters” the discretion as to be invalid.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-35", + "id": "scc-7944-33", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 81–83", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 67–68", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Over the years, the duties of enforcement officers have not changed, and yet, the bases upon which applicants rely to obtain deferrals have dramatically increased. I am of the view that the scope of the enforcement officer’s discretion cannot be changed by virtue of the requests made. An enforcement officer’s role is not to assess the best interests of the children or the probability of success of any application. An enforcement officer’s role should remain limited and deferral should be contemplated in very limited circumstances.\n\nThe legislation has not, to my knowledge, provided a new step to claimants who desire yet another assessment of their circumstances. Claimants already have the refugee application process, the pre-removal risk assessment (PRRA) process and the H&C application in addition to judicial reviews of those processes and the stay before removal.\n\nIn this case, it appears that the claimants want to open yet another avenue of review by asking the enforcement officer to reassess information that has already been examined by administrative tribunals and that was the subject of judicial review. For the enforcement officer to comply with this request for reassessment would be akin to the enforcement officer making a quasi-judicial order without the benefit of hearing from opposing counsel. It’s time to stop this abusive cycle.", - "current_to": "2009-03-13", + "text": "The Court of Appeal also concluded that Ontario’s policies were less favourable to the sponsors than the terms of some of the sponsorship undertakings. However, as discussed above, the terms of the undertakings are merely expressions of administrative interpretation. They are not, in my view, tools to construe the statutory framework itself. The importance of the signed undertakings in the administrative law context is that they lay the foundation for the application of the doctrine of legitimate expectations, as discussed below. However, with great respect for the Court of Appeal, I do not agree that the federal legislative framework mandates a broader discretion in favour of defaulting sponsors than Ontario permits. It was quite open to Ontario to adopt the collection policy that it did, in my opinion. D. The Doctrine of Legitimate Expectations\n\nWhere a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty. Proof of reliance is not a requisite. See Mount Sinai Hospital Center, at paras. 29-30; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 78; and C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131. It will be a breach of the duty of fairness for the decision maker to fail in a substantial way to live up to its undertaking: Brown and Evans, at pp. 7-25 and 7-26.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-36", + "id": "scc-7944-34", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 84–85", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 69–70", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "To further illustrate why the question before Justice Dawson was moot, consider the following hypothetical situation: if Justice O’Keefe had not granted the stay, and the appellants had been removed to Argentina, the judicial review before Justice Dawson would still have proceeded. Seeing as the appellants had already been removed on the scheduled removal date, Justice Dawson would likely still determine that the issue was moot, for the decision regarding the specified date had passed. But, if instead of making a finding of mootness, Justice Dawson found that the enforcement officer had made an error in not deferring the removal date, what would be the result? Would the appellants be permitted to return to Canada just for a second removal date to be set to have them removed? Would they request yet another deferral from a second enforcement officer? The possibility risks nonsense.\n\nThe more likely consequence is that the appellants would wait in Argentina for a determination of their H&C application and, if the application is successful, would be readmitted.", - "current_to": "2009-03-13", + "text": "Indeed it would be somewhat ironic if the government were able to insist on the sponsor living up to his or her undertaking to the letter while at the same time walking away from its own undertakings given in the same document. Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.\n\nHere the undertakings reaffirm that the government can defer, but not forgive, sponsorship debt. The respondents Grankin, Zebaradami, and de Altamirano, signed undertakings under the old Immigration Act in which the federal government represented that it possessed and would exercise a measure of discretion in the matter of enforcement: CONSEQUENCES OF DEFAULT . . . The Minister may choose not to take action to recover money from a Sponsor or a Sponsor’s spouse (if Co-signer) who has defaulted in a situation of abuse or in other appropriate circumstances. The decision of the Minister not to act at a particular time does not cancel the debt, which may be recovered by the Minister when circumstances have changed. [Emphasis added.] While default can be cured by making arrangements for repayment, it is clear that no representation is made that the debt will be cancelled, even when the Minister exercises his or her discretion to defer enforcement with or without a s. 135(b)(i) agreement. The Vossoughi and Dzihic undertakings are substantially the same.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-37", + "id": "scc-7944-35", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 86", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 71", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Under subsection 11(1) of the IRPA, a foreign national wishing to establish permanent resident status must apply for a visa before entering Canada. The IRPA makes it clear that H&C applications are intended to be used only as exceptions to this requirement. H&C applications are meant to allow for an application to be processed from within Canada where the Minister considers that humanitarian and compassionate grounds make this exemption justified: 25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. 25.", - "current_to": "2009-03-13", + "text": "The essential elements of the undertakings remained unchanged under the new Act. The Hince undertaking of November 20, 2002, signed under the IRPA , reads in relevant part as follows: I understand that all social assistance paid to the sponsored person or his or her family members becomes a debt owed by me to Her Majesty in right of Canada and Her Majesty in right of the province concerned. As a result, the Minister and the province concerned have a right to take enforcement action against me (as sponsor or co-signer) alone, or against both of us. The Minister and the province concerned may choose not to take enforcement action to recover money from me if the default is the result of abuse or in other circumstances. The decision not to act at a particular time does not cancel the debt. The Minister and the province concerned may recover the debt when circumstances have changed. [Emphasis added.]", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-38", + "id": "scc-7944-36", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 86–88", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 72", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. (2) Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.\n\nH&C applications are not intended to obstruct a valid removal order. Where a PRRA has revealed that the applicants are not at risk if they are returned, then the applicants are intended to make future requests for permanent residence from their home country.\n\nIn the appellants’ case, the H&C application is still pending. It is my view that this still does not prevent their removal. Removing the appellants will not cause irreparable harm to them or their Canadian-born children. Should a new removal date be scheduled, the appellants are likely to ask the enforcement officer for a deferral. I believe my colleague’s indication that new facts would need to be put forward to support such a request is optimistic. These appellants have continued to raise the same arguments throughout their dealings with immigration officials in Canada and the likelihood that they will continue to raise these arguments, or versions thereof consistent with the passing of time, is high.", - "current_to": "2009-03-13", + "text": "While the terms of the IRPA undertakings support the position of the Attorneys General that the debt is not forgiven, they also support the sponsors’ contention of a government representation to them that there exists a discretion not to take enforcement action “in a situation of abuse or in other appropriate circumstances” (pre-2002) or “if the default is the result of abuse or in other circumstances” (post-2002). Such representations do not conflict with any statutory duty and are sufficiently clear to preclude the government from denying to the sponsor signatories the existence of a discretion to defer enforcement. Given the legitimate expectations created by the wording of these undertakings I do not think it open to the bureaucracy to proceed without notice and without permitting sponsors to make a case for deferral or other modification of enforcement procedures. E. Ontario’s Policy Provides an Appropriate Measure of Procedural Fairness", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-36347-39", + "id": "scc-7944-37", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 89", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 73–74", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Therefore, I would dismiss this appeal with costs and answer the certified question as follows: The removal date having passed, the determination of the reasonableness of the enforcement officer’s refusal to defer the removal date in January 2007 is without consequence and therefore the matter is rendered moot. “Pierre Blais” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2009-03-13", + "text": "The Ontario procedure takes the form of a series of letters notifying sponsors that a sponsored relative has applied for social assistance and that he or she is now in default. The letters in most cases made clear Ontario’s openness to consideration of mitigating factors or financial circumstances or other reasons why the debt should not immediately be enforced. This is the correct practice because under the Ontario policy the local social assistance agents are supposed to consider these factors before deciding to refer the matter for collection. Ontario Works and the Ontario Disability Support Program set out a process for dealing with family abuse between a sponsor and sponsored person. The Family Violence and Sponsorship Debt Recovery information sheet describes how the officers should deal with alleged abuse and/or family violence cases. Ontario requires that if such information comes to the officer’s attention collection efforts are to stop immediately.\n\nIf the sponsor does not agree to repay the debt and resume supporting his or her sponsored relative, the matter is ordinarily referred to the Overpayment Recovery Unit (“ORU”) for collection. The ORU will then send additional notice letters and if the sponsor responds, the ORU will solicit the sponsor’s financial information to determine his or her ability to support his or her relative and repay the debt. If the sponsor does not cooperate, the matter is referred to Canada Revenue Agency’s Refund Set-Off Program, which withholds any tax refunds or credits for the benefit of the province.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-520921-1", + "id": "scc-7944-38", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 1–3", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 75", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Maria Camila Galindo Camayo is a citizen of Colombia. As a child, she and members of her family were found to be people in need of protection in Canada, based upon her mother having been targeted for extortion by the Fuerzas Armadas Revolucionarias de Colombia.\n\nWhen it came to the attention of the Minister of Citizenship and Immigration that Ms. Galindo Camayo had used a Colombian passport to take numerous trips to Colombia and other countries, the Minister commenced an application for the cessation of her protected person status. The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Ms. Galindo Camayo had voluntarily reavailed herself of the diplomatic protection of Colombia. As a result, the Minister’s application was granted, and Ms. Galindo Camayo’s claim for protection was deemed to have been rejected.\n\nIn reasons reported as 2020 FC 213, the Federal Court set aside the RPD’s decision on the basis that the RPD’s finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unreasonable. The Federal Court ordered that the matter be remitted to a differently constituted RPD panel for redetermination. The Federal Court did, however, certify the following questions: 1) Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27, c.", - "current_to": "2022-03-29", + "text": "In this process there is a limited but real opportunity for the sponsor to make representations to the government regarding the particular circumstances surrounding a default. There is no hearing and no appeal procedure but there is a legitimate expectation that the government will consider relevant circumstances in making its enforcement decision and a duty of procedural fairness to do so. However, the wording of the government’s representations in the undertaking are sufficiently vague to leave the government’s choice of procedure very broad. Clearly no promises are made of a positive outcome from the sponsors’ point of view. The Ontario guidelines fully comply with the statutory requirements, in my opinion, but this is not to say that each province and territory must proceed in an identical fashion. The essential requirements are that procedural fairness be observed and that the terms of the undertakings be respected by governments as well as by the sponsors who are alleged to be in default.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-520921-2", + "id": "scc-7944-39", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 3–5", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 76", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "27 (“IRPA”)] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? 2) If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? 3) If yes to Question 1, can evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] be relied on to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nI understand from the parties that the first question is no longer in issue as this Court has previously held that a minor who obtains refugee protection as a dependant under a parent’s claim is indeed subject to the same immigration consequences as the parent claimant: Canada (Minister of Citizenship and Immigration) v. Tobar Toledo, 2013 FCA 226.\n\nInsofar as the second question is concerned, the Minister asserts that the Federal Court erred in finding the RPD’s decision to be unreasonable. The Federal Court found that Ms. Galindo Camayo’s lack of knowledge of the Canadian immigration consequences of travelling internationally using a Colombian passport was sufficient to rebut the presumption of intent to reavail. According to the Minister, the state of the individual’s knowledge is not the legal test for cessation nor is it a factor for consideration under that test.", - "current_to": "2022-03-29", + "text": "The sponsors contend that the government is under a duty to inform them as soon as a sponsored relative obtains public assistance. It is unfair, they say, for the government to allow debt to accumulate unbeknownst to them. This is of particular concern when the relationship between sponsor and relative has broken down and the sponsor is unaware that the relative is seeking or receiving social assistance. Counsel point out that demand for payment from a number of the sponsors was not made before their indebtedness became relatively large and after the passage of a considerable period of time (for example, Mr. Grankin, four and a half years after his mother was first granted social assistance; Ms. de Altamirano, three years from the application for social assistance for her mother; Ms. Vossoughi, close to two years after the sponsor applied for social assistance for her sponsored mother). I agree that good debt management practice would suggest that demand be made as soon as the government payments to or on behalf of the sponsored relative commence. Nonetheless, it is inherent in the sponsor’s support obligation that the sponsor is to keep track of the sponsored relative he or she has undertaken to support. Family class immigrants are admitted solely on the basis of their relationship to the sponsor. In return, the sponsor, not the government, is “responsible for preventing the family member and any accompanying dependents from becoming dependent on public social assistance programs”. Accordingly, the risk of a rogue relative properly lies on the sponsor, not the taxpayer.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-520921-3", + "id": "scc-7944-40", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 6–8", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "paras 77–78", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "With respect to the third question, the Minister observes that refugee protection is available to individuals who can establish on a balance of probabilities that they would be at risk of facing persecutory treatment in their country of nationality. Implicit in such a finding is that the person cannot protect themselves from their agent of persecution or obtain such protection anywhere in that country. It is therefore inconsistent with a finding that a person is in need of protection for the individual to later claim that they are able to protect themselves sufficiently as to allow them to return to their country of nationality. The Minister says that the Federal Court thus erred in considering the fact that Ms. Galindo Camayo obtained private security while she was in Colombia as evidence that she did not intend to reavail herself of the protection of the state.\n\nFor the reasons that follow, I have concluded that the Federal Court did not err in finding that the Board’s decision was unreasonable. Consequently, I would dismiss the appeal. I would only answer the second and third questions and I would answer them in the affirmative.\n\nMs. Galindo Camayo was a minor when she arrived in Canada. She received protected person status in Canada in 2010, when she was 15 years old (for the sake of simplicity, the terms “person in need of protection”, “protected person”, and “refugee” will be used interchangeably in these reasons). Ms. Galindo Camayo returned to Colombia five times since 2010, taking her last trip in late 2016 and early 2017, when she was a 21-year-old college student.", - "current_to": "2022-03-29", + "text": "In the material before us it is clear that each of the eight sponsors was notified of the default and was in communication with the Ministry, in some cases through legal counsel. The facts considered relevant by the sponsors were put forward by some of the respondents. Others simply ignored the government’s reasonable requests. Mr. Hince, for example, declined to disclose his financial situation on the financial assessment forms and did not respond to the government’s letters. Ms. Vossoughi did not reply to the two notification letters sent to her after she had been advised that her mother had applied for social assistance.\n\nThe Ministry, after consideration of whatever information was provided, generally advised each of the respondent sponsors that the sponsorship undertakings remained in effect but that the government was open to the negotiation of a repayment plan. At least one of the respondent sponsors did negotiate a repayment plan and, it seems, has been making monthly payments. However, the respondents then initiated these proceedings. In my respectful view the policies adopted by Ontario would, if respected in its collection efforts, satisfy the legitimate procedural expectations of the sponsors, and meet the basic requirements of procedural fairness. The respondent sponsors’ claims to the contrary should be rejected. V. Disposition", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-520921-4", + "id": "scc-7944-41", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 9–12", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 79", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "Ms. Galindo Camayo travelled on a Colombian passport on each of these occasions. She initially used the passport that her mother had obtained for her. However, she turned 18 during her second trip to Colombia and she was advised by Colombian authorities that she had to apply for an adult passport in order to be able to return to Canada. Ms. Galindo Camayo received a new adult Colombian passport in August of 2013, returning to Canada shortly thereafter.\n\nIn addition to the five trips to Colombia that Ms. Galindo Camayo took after receiving protected person status, she visited Mexico three times, and she took trips to the United States and Cuba. Ms. Galindo Camayo travelled on her Colombian passport on each occasion.\n\nOn January 27, 2017, the Minister applied to cease Ms. Galindo Camayo’s protected person status, pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Subsection 108(2) provides that “[o]n application by the Minister, the Refugee Protection Division may determine that refugee protection … has ceased for any of the reasons described in subsection (1)”.\n\nParagraph 108(1)(a) of IRPA provides that “[a] claim for refugee protection shall be rejected, and a person is not … a person in need of protection … [if] the person has voluntarily reavailed themself of the protection of their country of nationality”. The full text of these and other relevant statutory provisions is attached as an appendix to these reasons.", - "current_to": "2022-03-29", + "text": "These actions arose out of claims for declaratory relief. In light of the foregoing reasons, the appeal is allowed in part and the following declarations will issue: (i) Canada and Ontario have a discretion under the IRPA and its Regulations to defer but not forgive debt after taking into account a sponsor’s submissions concerning the sponsor’s circumstances and those of his or her sponsored relatives. (ii) Ontario did not improperly fetter its exercise of statutory discretion in adopting its policy. Its terms are consistent with the requirements of the statutory regime and met the legitimate procedural expectations of the respondent sponsors created by the text of their respective undertakings. (iii) Canada and Ontario owe sponsors a duty of procedural fairness when enforcing sponsorship debt. (iv) The content of this duty of procedural fairness include the following obligations: (a) to notify a sponsor at his or her last known address of the claim; (b) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (c) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; (d) to notify the sponsor of the government’s decision; (e) without the need to provide reasons. (v) That the above requirements of procedural fairness were met in the cases of the eight respondent sponsors.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-520921-5", + "id": "scc-7944-42", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2011 SCC 30", + "act_short": "Mavi", + "act_name": "Canada (Attorney General) v. Mavi", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 13–16", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", + "marginal_note": "para 80", + "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", + "part": "Supreme Court of Canada", "division": "", - "text": "The Minister asserts that Ms. Galindo Camayo had voluntarily and intentionally reavailed herself of the protection of her country of nationality by obtaining a Colombian passport and by using it to travel to Colombia and elsewhere. As a result, the Minister says that Ms. Galindo Camayo’s claim for protected person status should be deemed to have been rejected.\n\nMs. Galindo Camayo argued before the RPD that she did not voluntarily reavail herself of Colombia’s protection under section 108 of IRPA by acquiring Colombian passports. It was her mother, and not Ms. Galindo Camayo herself, who had applied for her first passport while she was still a minor, and Ms. Galindo Camayo was compelled to obtain her second Colombian passport in 2013 in order to be able to return to Canada.\n\nMs. Galindo Camayo testified that she travelled to Colombia to assist her sick father and to volunteer for a humanitarian mission, and that she did not understand the consequences of her travel for her status in Canada. Ms. Galindo Camayo further stated that she did not avail herself of Colombia’s protection while she was there, as she hired armed private security guards to provide her with protection during each of her trips.\n\nThe RPD agreed with the Minister, finding that Ms. Galindo Camayo had voluntarily reavailed herself of Colombia’s protection as described in paragraph 108(1)(a) of IRPA. The Minister’s application for the cessation of Ms. Galindo Camayo’s status as a protected person was therefore allowed, and her claim for protection was deemed to have been rejected in accordance with subsection 108(3) of IRPA.", - "current_to": "2022-03-29", + "text": "As these proceedings can properly be characterized as test cases to resolve certain legal issues of public importance all parties will bear their own costs on the appeal and on the application for leave to appeal. Appeal allowed in part.", + "current_to": "2011-06-10", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2011] 2 SCR 504", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" }, { - "id": "fca-520921-6", + "id": "scc-12904-1", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 17–19", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 1–3", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "In coming to the conclusion that the Minister’s application should be granted, the RPD only focused on the cessation principles discussed in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR, 2019, UN Doc. HCR/1P/4/ENG/REV.4 (Refugee Handbook). Although it acknowledged (at para. 19) that it was “not bound” by the Refugee Handbook and the guidelines set out in it, the RPD found them “useful and relevant”.\n\nThe RPD noted that in accordance with Article 1C(1) of the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (Refugee Convention) there are three implied criteria to be considered in determining whether cessation had occurred. These are: (1) Voluntariness: The refugee must have acted voluntarily; (2) Intention: The refugee must have intended by his or her actions to reavail him or herself of the protection of their country of nationality; and (3) Reavailment: The refugee must actually obtain state protection.\n\nIn reality, when the RPD decision is examined in its totality in light of the record before it, it is clear that the RPD fastened onto the Refugee Handbook and the particular wording of the Refugee Handbook as if it was domestic law that was binding on the RPD. At paragraph 17 of its reasons, the RPD set out the text of section 108 of IRPA, but it did not interpret it. Indeed, at no time did the RPD attempt to interpret section 108 by examining its text, context and purpose.", - "current_to": "2022-03-29", + "text": "The central issue in this appeal is whether a sentence otherwise falling within the range of fit sentences can be varied by an appellate court on the basis that the offender would face collateral consequences under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), s. 64, that were not taken into account by the sentencing judge.\n\nSince the Crown conceded that, had it been aware of the collateral consequences at the time of the sentencing hearing, it would have agreed to a sentence of two years less a day, this Court decided at the conclusion of oral argument to allow the appeal and reduce the sentence from two years to two years less a day. The following are the reasons for that decision. II. Background\n\nHoang Anh Pham was convicted on charges of producing marihuana and possessing it for the purpose of trafficking contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . In light of a joint submission by the Crown and counsel for the appellant, the Provincial Court of Alberta imposed a sentence of two years’ imprisonment.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-7", + "id": "scc-12904-2", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 20–22", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 4–6", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "Accepting that on a proper interpretation of section 108 of IRPA the three criteria of voluntariness, intention and reavailment are part of the inquiry required by law, what do these terms mean? For example, what acts or statements are relevant to voluntariness or intention?\n\nThe questions can multiply and become more focused, especially in a fact-laden case such as the one at bar. Is the RPD to look solely at the actual subjective intention of the relevant individual and accept it, or is the RPD able to import an objective element into the analysis, such as the reasonableness of the actions and intentions of the relevant individual? These and other questions that can arise in a particular case involve questions of statutory interpretation: exactly when does section 108, properly interpreted, apply to allow the RPD to deem a person’s claim for refugee protection to have been rejected?\n\nInsofar as the question of voluntariness was concerned, the RPD accepted that Ms. Galindo Camayo did not act voluntarily in obtaining her Colombian passports. Her first passport was acquired by her mother when she was a minor, which was a matter outside Ms. Galindo Camayo’s control, and she was compelled to obtain her second Colombian passport in order to be able to leave the country.", - "current_to": "2022-03-29", + "text": "Mr. Pham appealed the sentence, seeking to have it reduced by one day. He argued that the sentencing judge was not aware of and, for this reason, did not consider the collateral consequences of a sentence of two years’ imprisonment on his immigration status. Under the IRPA, a non-citizen sentenced in Canada to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. Considering that a sentence of two years less a day, like the imposed sentence of two years, remained within the range of appropriate sentences, the Crown conceded that the sentence should be reduced by one day. It must be noted that neither the appellant’s counsel nor the Crown had raised these issues before the sentencing judge, who apparently was not aware of the collateral consequences.\n\nDespite the Crown’s concession, the majority of the Court of Appeal of Alberta refused to vary the appellant’s sentence by one day, holding that, in the circumstances, allowing the appeal from a sentence situated within the range of otherwise fit sentences would inappropriately undermine the provisions of the IRPA (2012 ABCA 203, 533 A.R. 192, at paras. 24-25). The dissenting judge would have allowed the variation, noting that, had the appellant’s counsel been aware of the collateral consequences of a two-year sentence in this case, a joint submission for a sentence of two years less a day would have been agreed upon (para. 33). III. Analysis\n\nProportionality is a fundamental principle of sentencing. Section 718.1 of the Criminal Code , R.S.C. 1985, c. C‑46 , provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-8", + "id": "scc-12904-3", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 23–24", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 7–8", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "The RPD asserted, however, without any analysis of the requirements of section 108, that the acquisition of passports is not the only relevant factor to consider in assessing the voluntariness of Ms. Galindo Camayo’s actions, and that her use of those passports also had to be considered. In this regard, the RPD found that Ms. Galindo Camayo acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016, and there was insufficient evidence before it to establish that Ms. Galindo Camayo was compelled to use her Colombian passports to take any of these trips.\n\nWith respect to the question of Ms. Galindo Camayo’s intention in using her Colombian passports, the RPD was concerned with respect to her evidence regarding the need for her to care for her father in Colombia. It observed that Ms. Galindo Camayo’s father (who was a permanent resident of Canada) was actually in Canada during one of the periods that Ms. Galindo Camayo was in Colombia, purportedly caring for him there, and that he had visited Canada on numerous other occasions. The RPD further noted that Ms. Galindo Camayo claimed that her father had stayed in Colombia rather than come to Canada with the rest of his family, as he did not want to impose a burden on his family. It found, however, that this assertion was undermined by the fact that her father’s conduct regularly exposed Ms. Galindo Camayo to a dangerous situation in Colombia, thus imposing a significant burden on her.", - "current_to": "2022-03-29", + "text": "LeBel J. explained proportionality as follows in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. . . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.\n\nIn addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process. This Court has repeatedly emphasized the value of individualization in sentencing: Ipeelee, at para. 39; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 21; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92. Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2 (a) of the Criminal Code ), as well as objective and subjective factors related to the offender’s personal circumstances.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-9", + "id": "scc-12904-4", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 25–28", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 9–10", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "Notwithstanding its concerns with respect to Ms. Galindo Camayo’s evidence on this point, the RPD did not find in clear and unmistakeable terms that her evidence lacked credibility: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.). Thus, the facts the RPD had to work with were those presented by the parties, and the case turned solely on whether the facts met the requirements of section 108.\n\nIn the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 means. I will return to these assertions later on in these reasons.\n\nThe RPD thus found that the Minister had established that Ms. Galindo Camayo had acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016. The Minister had further established that Ms. Galindo Camayo had intended by her actions to reavail herself of Colombia’s protection as contemplated by paragraph 108(1)(a) of IRPA, and that she had in fact done so.\n\nConsequently, the RPD allowed the Minister’s application for cessation and Ms. Galindo Camayo’s protection claim was deemed to have been rejected.", - "current_to": "2022-03-29", + "text": "As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2 (b) of the Criminal Code ). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §2.41).\n\nUltimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must have one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to victims for harm done to them, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community (s. 718 of the Criminal Code ).", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-10", + "id": "scc-12904-5", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 29–31", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "para 11", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "The Federal Court was satisfied that the RPD had reasonably found that while Ms. Galindo Camayo’s acquisition of her Colombian passports was involuntary, her subsequent use of them to return to Colombia and to travel to other countries was voluntary. The Federal Court further found that the RPD had reasonably relied on the presumption of reavailment—both with respect to Ms. Galindo Camayo’s intention to reavail, and whether she actually had reavailed. The RPD also observed that the presumption of reavailment arises when a protected person acquires, renews, or uses a passport issued by their country of nationality.\n\nHowever, the Federal Court observed that the presumption of reavailment is a rebuttable one. The RPD thus had to consider whether Ms. Galindo Camayo had rebutted the presumption in this case. The Federal Court identified the question for determination as being whether the RPD had reasonably considered Ms. Galindo Camayo’s subjective intent to reavail and her efforts to obtain private security to protect her during her visits to Colombia as evidence that could rebut the presumption of reavailment.\n\nThe Federal Court noted that the outcome in each cessation case will be largely fact-dependent. However, by interpreting Ms. Galindo Camayo’s use of her passport as satisfying all three essential and conjunctive elements of the reavailment test (voluntary, intentional, and actual reavailment), no room was left for Ms. Galindo Camayo to demonstrate that despite her acquisition and use of her Colombian passport, she did not intend to avail herself of the protection of the state. In other words, intention in the cessation context cannot be based solely on intending to complete the underlying act itself; one also has to understand the consequences of one’s actions.", - "current_to": "2022-03-29", + "text": "In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2 (a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718 (d) of the Criminal Code ). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-11", + "id": "scc-12904-6", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 32–36", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 12–13", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "As can be seen, the Federal Court developed its own view of section 108 and how it should operate, and then applied it to the RPD’s decision. In so doing, it departed from its role as a reviewing court and delved into issues that were for the RPD to consider.\n\nIn the end result, the Federal Court granted Ms. Galindo Camayo’s application for judicial review, certifying the three questions identified at the beginning of these reasons.\n\nAs noted earlier, the first of the questions certified by the Federal Court is no longer in issue. The second question was not appropriate for certification in its original form, as its premise does not fully accord with the facts of this case.\n\nIt will be recalled that the second question certified by the Federal Court was: If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? [my emphasis]\n\nIt is undisputed that Ms. Galindo Camayo did not just use her Colombian passport to travel to third countries, but that she also used it to travel to Colombia on five separate occasions. Consequently, I would first reformulate this question as follows: Can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection?", - "current_to": "2022-03-29", + "text": "However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows: As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. . . . . . . The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added.] (The Law of Sentencing (2001), at pp. 136-37)\n\nTherefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-12", + "id": "scc-12904-7", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 37–39", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 14–16", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "It is well established that the certification requirement in subsection 74(d) of IRPA is to serve as a control on the types of cases that can be placed before this Court. However, once a question is certified for the consideration of this Court, this Court is entitled to deal with all of the issues that arise in the appeal: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 28; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at para. 50.\n\nOften, as here, the central issue before the reviewing court is whether the RPD’s decision was reasonable. In an appeal from a decision of the Federal Court in an application for judicial review, this Court’s task is to determine first, whether the Federal Court identified the appropriate standard of review, and second, whether it properly applied that standard: Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47. This has often been described as requiring that this Court “step into the shoes” of the Federal Court judge, and focus on the administrative decision. This is the approach to be followed even where the Court is dealing with questions of general importance that have been certified by the Federal Court: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44 (Kanthasamy SCC).\n\nI understand the parties and the interveners to agree that the Federal Court correctly identified reasonableness as the standard to be applied in reviewing the RPD’s cessation findings. The focus is therefore on the way that the Federal Court applied the reasonableness standard to the RPD’s decision.", - "current_to": "2022-03-29", + "text": "The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.\n\nThe flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.\n\nThese consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-13", + "id": "scc-12904-8", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 40–41", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "para 17", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "However, the fact that we have certified questions before us gives rise to an awkward situation. Certified questions generally raise questions of law, including, as in this case, questions of statutory interpretation. However, the questions, as phrased by the Federal Court, require a yes or no answer. This invites correctness review by this Court. That said, as described above, this Court is required to engage in reasonableness review on questions of statutory interpretation. This creates the possibility that, in some cases, this Court may find the RPD’s interpretation of a statutory provision to be reasonable, yet this Court may say something entirely different in providing its own view of the matter in answering the certified question—something that the Supreme Court expressly tells us not to do: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 83 (Vavilov SCC), citing Delios v. Canada (Attorney General), 2015 FCA 117 at para. 28.\n\nThis Court raised this awkward situation—the misfit between answering the certified question properly and conducting reasonableness review—in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paragraphs 30 to 37. One solution suggested by this Court in Kanthasamy was to regard the Court’s need to answer certified questions as a statutory indication that correctness should be the standard of review. This solution would seem to gain greater credence now that the Supreme Court has held that statutory standards can have a bearing on the standard of review: Vavilov SCC at paras. 34-35.", - "current_to": "2022-03-29", + "text": "In R. v. Badhwar, 2011 ONCA 266, 9 M.V.R. (6th) 163, the offender was convicted of criminal negligence causing death while street racing and failure to stop at the scene of an accident. He was sentenced to 30 months (less 5 months for pre-trial custody) on the first count and 12 months consecutive on the second. On appeal, he did not seek a reduction of his global sentence of 37 months; rather, he asked the court to adjust his sentence to 23 months and 19 months consecutive in order to avoid the collateral consequences of a sentence of 24 months or more, namely the loss of his immigration appeal rights. I agree with Moldaver J.A. (as he then was), who, in refusing to grant the adjustment, wrote the following, at paras. 42-45: In seeking to have his sentence adjusted, the appellant does not suggest that the trial judge erred in imposing a penitentiary sentence on the charge of criminal negligence causing death — nor could he. This court . . . upheld a 30 month sentence for [the offence of criminal negligence causing death while street racing] in respect of Mr. Multani (2010), 261 O.A.C. 107 (Ont. C.A.). Significantly, in Multani’s case, the court refused to give effect to Mr. Multani’s submission that the sentence of 30 months should be reduced to 23 months for reasons relating to his immigration status. At para. 3 of the decision, the court noted that “while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range.” That principle applies equally to the appellant.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-14", + "id": "scc-12904-9", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 42–44", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 17–18", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "Nevertheless, the Supreme Court subsequently confirmed that certified questions are not decisive of the standard of review, and that reasonableness should remain the standard of review applied by this Court: see Kanthasamy SCC, above at paras. 43-44. The Supreme Court appeared to recognize that this effectively renders the answer to the certified question mere surplusage, relegating the role of such questions to fulfilling a gatekeeping function.\n\nThis situation was replicated in Vavilov. The certified question in Vavilov v. Canada (Minister of Citizenship and Immigration), 2017 FCA 132 posed a yes-no question. This Court conducted a reasonableness review of the administrative decision but gave a precise answer, akin to a correctness review answer, to the question. In dismissing the appeal, the Supreme Court in effect ratified how this Court approached the certified question.\n\nThe potential misfit between reasonableness analysis and the definitive correct answer required by a certified question can, however, be avoided if the Federal Court were to formulate certified questions in a manner that asks whether a particular statutory interpretation or approach is reasonable. In this case, the second and third questions, as stated, call for a correctness response. I would therefore amend them to ask whether the particular statutory interpretation or approach suggested by the question is or is not reasonable.", - "current_to": "2022-03-29", + "text": "In his case, somewhat ironically, he seeks to benefit from the fact that he was convicted of two offences and therefore can seek the adjustments he is requesting without interfering with the overall length of his sentence — something Mr. Multani could not do given that he was only convicted of the single offence of criminal negligence causing death. No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament’s will on matters of immigration.\n\nIt follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-15", + "id": "scc-12904-10", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 45–47", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "para 19", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "Consequently, I have reformulated the second and third questions as follows: (2) Is it reasonable for the RPD to rely on evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? (3) Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nThe Supreme Court stated in Vavilov that “[r]easonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law”: Vavilov SCC, above at para. 82.\n\nReasonableness review involves both an assessment of the outcome of the case and of the reasoning process leading to that outcome: Vavilov SCC, above at para. 83. The Supreme Court further affirmed that it is not sufficient for the outcome of a decision to be justifiable. Where reasons are required, the decision must also be justified by the decision maker to those to whom the decision applies: Vavilov SCC, above at para. 86.", - "current_to": "2022-03-29", + "text": "I adopt the position asserted by Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at paras. 156 and 158: . . . the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code . The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender . . . . . . . . . . If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [the offender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender . . . can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to [the offender] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence . . . . [Citations omitted.]", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-16", + "id": "scc-12904-11", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 48–49", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "para 20", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "Vavilov teaches that reasons “must not be assessed against a standard of perfection” and that administrative decision makers should not be held to the “standards of academic logicians”: Vavilov SCC, above at paras. 91, 104. Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 25 (Newfoundland Nurses); Vavilov SCC, above at para. 128. Nor are they required to “make an explicit finding on each constituent element, however subordinate, leading to [their] final conclusion”: Newfoundland Nurses, above at para. 16.\n\nThat said, reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable”: Vavilov SCC, above at para. 81. The principles of justification and transparency thus require that administrative decision makers’ reasons “meaningfully account for the central issues and concerns raised by the parties”: Vavilov SCC, above at para. 127. The failure of a decision maker to “meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”: Vavilov SCC, above at para. 128. As a result, “where reasons are provided but they fail to provide a transparent and intelligible justification ... the decision will be unreasonable”: Vavilov SCC, above at para. 136.", - "current_to": "2022-03-29", + "text": "Accordingly, the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years’ imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-17", + "id": "scc-12904-12", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 50", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 21–22", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention: Vavilov SCC, above at para. 133. The failure to grapple with the consequences of a decision should thus be considered: Vavilov SCC, above at para. 134, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3.", - "current_to": "2022-03-29", + "text": "The reasons of Doyon J.A. in R. v. Guzman, 2011 QCCA 136 (CanLII), provide an illustration of this approach to the treatment of collateral immigration consequences in sentencing. In that case, the Quebec Court of Appeal was asked to grant a minimal variation of a sentence to ensure that the sentence would not have adverse consequences for the offender’s immigration status. Doyon J.A. declined to acquiesce in this request, stating that, in light of the facts of the case, a reduction of the sentence, even a modest reduction of one day, would be both unfit and inconsistent with the principles of sentencing. He held as follows, at paras. 102-3: [translation] In summary, the status of the appellants and the impact of the prison sentences on their right to appeal to the Immigration Appeal Division are relevant circumstances and must be taken into consideration. However, given the circumstances in which the offences were committed, their seriousness, the profile of the appellants, and the objectives and principles of sentencing set out in the Criminal Code , I am of the view that the sentences inflicted on the appellants are fit even if they are not reduced by one day, as the appellants seek. . . . the near total lack of factors suggesting a real possibility of rehabilitation and change of behaviour on the part of the appellants convinces me that, even if the judges had been aware of all of the relevant facts, they would not have imposed sentences of less than two years’ imprisonment solely to allow the appellants to preserve their right of appeal. [Emphasis added.]\n\nIn sum, collateral immigration consequences may be just as relevant in sentencing as the collateral consequences of other legislation or of circumstances specific to the offender.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-18", + "id": "scc-12904-13", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 51–52", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 23–24", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "In this case, the seriousness of the impact of the RPD’s decision on Ms. Galindo Camayo increases the duty on the RPD to explain its decision. Specifically: a) The loss of refugee or protected person status unquestionably has serious consequences for the affected individual and persons like her, and legislative changes have made those consequences harsher in the last decade. In the past, protected persons who became permanent residents and who were then subject to cessation findings were able to maintain their permanent resident status in Canada. However, with changes brought about by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, sections 18 and 19, this is no longer the case. b) Moreover, a cessation finding cannot be appealed to either the Immigration Appeal Division or the Refugee Appeal Division of the Immigration and Refugee Board: IRPA, subsections 63(3) and 110(2). Individuals whose refugee protection has been ceased are also barred from seeking a Pre-removal Risk Assessment or an application for permanent residence on humanitarian and compassionate grounds for at least one year: IRPA, sections 25(1.2)(c)(i), 40.1, 46(1)(c.1), 63(3), 101(1)(b), 108(3), 110(2), and 112(2)(b.1). They are also inadmissible to Canada for an indeterminate period: IRPA, subsection 40.1(2) and paragraph 46(1)(c.1), and are subject to removal from Canada “as soon as possible”: IRPA, subsection 48(2).\n\nWhere, as here, the administrative decision maker has to deal with issues of statutory interpretation, certain additional considerations must be kept in mind by both the administrative decision maker and the reviewing court.", - "current_to": "2022-03-29", + "text": "Where the issue of immigration consequences is brought to the trial judge’s attention and the trial judge applies the proper sentencing principles but nonetheless decides on a two-year sentence, then, absent fresh evidence, deference is owed to that decision. Where this issue has not been raised before the trial judge and the Crown does not give its consent, an affidavit or some other type of evidence should then be adduced for consideration by the Court of Appeal.\n\nAn appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court’s intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender’s immigration status, there will be other cases in which it is not appropriate to do so.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-19", + "id": "scc-12904-14", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2013 SCC 15", + "act_short": "Pham", + "act_name": "R. v. Pham", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 53–55", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "R. v. Pham, 2013 SCC 15", + "marginal_note": "paras 25–26", + "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", + "part": "Supreme Court of Canada", "division": "", - "text": "First, the administrative decision maker must deal with any statutory interpretation issues by examining the text, context and purpose of the relevant provisions. Its analysis need not be the sort of formalistic statutory interpretation exercise that a court would perform: Vavilov SCC, above at paras. 92 and 119; Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at para. 39. Due allowance must be made for the fact that Parliament has given the responsibility to interpret the statutory provisions to an administrative decision maker, not a court, and certainly not to the reviewing court.\n\nSecond, in conducting reasonableness review, a reviewing court must be on guard not to engage in what is called “disguised correctness” review. It should not interpret the statutory provision itself and then use its own interpretation as a yardstick to measure the interpretation reached by the administrative decision maker: Delios, above at para. 28; Mason, above at para. 12. Reviewing courts can adopt specific techniques to avoid doing this: Mason, above at paras. 15-20, citing Hillier v. Canada (Attorney General), 2019 FCA 44 at paras. 13-17.\n\nThird, largely in pre-Vavilov jurisprudence, the Federal Court has offered interpretations of section 108 that shed light on when cessation under section 108 will be warranted. While in some cases, decisions of the Federal Court disagree with each other, it must again be remembered that under Vavilov, the Federal Court is not the body that interprets section 108. Rather, it is restricted to the role of a reviewing court.", - "current_to": "2022-03-29", + "text": "In the case at bar, the sentencing judge was not aware of the sentence’s collateral immigration consequences, and the appellate court accordingly had the authority to intervene. The Crown conceded both in the Court of Appeal and at the hearing in this Court that a reduced sentence of two years less a day remains within the range of otherwise fit sentences and that the imposed sentence of two years’ imprisonment should be reduced by one day. The Crown also agreed that the reduced sentence is the one that the sentencing judge would have imposed in the case at bar had he been aware of the collateral immigration consequences (R.F., at para. 69). It was wrong for the Court of Appeal to refuse the one-day reduction solely on the basis that the appellant had a prior criminal record or that it felt that he had “abused the hospitality that [had] been afforded to him by Canada” (para. 24). It is therefore appropriate to grant the variation of the sentence sought by the appellant. IV. Conclusion\n\nFor these reasons, the Court allowed the appeal at the conclusion of the hearing and reduced the sentence of imprisonment from two years to two years less a day. Appeal allowed.", + "current_to": "2013-03-14", "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "history": "[2013] 1 SCR 739", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" }, { - "id": "fca-520921-20", + "id": "scc-1299-1", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 56–58", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 1", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Nevertheless, the leading interpretations of section 108 offered by the Federal Court that are relevant to the case at hand should be considered and assessed by the RPD, with supporting reasoning. As a general matter, judicial interpretations of statutory provisions bind the RPD unless the RPD can distinguish them or explain why a departure from them is warranted.\n\nIn the end result, in cases where the administrative decision maker has to consider the proper meaning of a statutory provision, the reviewing court must be satisfied that the administrative decision maker is “alive [either implicitly or explicitly] to [the] essential elements” of text, context and purpose and has touched on at least “the most salient aspects of the text, context [and] purpose”: Vavilov SCC, above at paras. 120-122; Mason, above at para. 42.\n\nIn my view, the decision of the RPD was not reasonable. As set out above, many questions arise as to the proper interpretation of section 108 of IRPA. The RPD simply stated its own view of what section 108 requires, without any real analysis. In broad terms, it set out the text of section 108, fastened onto the Refugee Handbook, and then asserted its own views of what section 108 requires, without considering the text, context and purpose of section 108. It also failed to analyze and consider the Federal Court’s jurisprudence in order to see whether its decision was legally constrained in any way. It then stated its conclusion on various issues, but did not provide a sufficient pathway of reasoning to explain how it got there.", - "current_to": "2022-03-29", + "text": "La Forest J. (dissenting) -- This case raises several issues concerning the definition of a \"Convention refugee\" in s. 2(1) of the Immigration Act, R.S.C., 1985, c. I‑2 (rep. & sub. c. 28 (4th Supp.), s. 1), first considered by this Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. That section reads: 2. (1) . . . \"Convention refugee\" means any person who (a)by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b)has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-21", + "id": "scc-1299-2", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 59", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 2–3", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "In saying this, I recognize that due allowance must be made for the fact that the RPD is an administrative decision maker, often staffed by lay people, with its own way of dealing with and articulating legal issues. That said, even affording that allowance to the RPD, it fell short of the mark in this case.", - "current_to": "2022-03-29", + "text": "The present appeal is from a judgment of the Federal Court of Appeal which dismissed an appeal from an Immigration and Refugee Board decision denying the appellant's claim for Convention refugee status. At issue is whether a well‑founded fear of forced sterilization for failure to comply with China's birth control policy is a \"well‑founded fear of persecution\" for reasons of \"membership in a particular social group\". The appeal also deals with the proper interpretation of \"persecution\", \"membership in a particular social group\", and \"political opinion\" as defined in the Act and explained by this Court in Ward, supra. In considering these questions it will be necessary to determine the proper evidentiary approach to be applied to the testimony of a refugee claimant. Facts\n\nThe appellant, Kwong Hung Chan, is a citizen of the People's Republic of China (China) from Guangzhou City. His ethnic origin is Han Chinese. During the Cultural Revolution, he and his family suffered persecution because of his father's background as a landowner, but there was no other evidence of persecution for this reason beyond the period of the Cultural Revolution.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-22", + "id": "scc-1299-3", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 60", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 4–5", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "In the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 of IRPA means. However, it adopted these views without conducting any statutory interpretation analysis. Examples include the following: (a) The RPD rejected Ms. Galindo Camayo’s claim that she was unaware of the potential consequences of using her Colombian passport. Noting that ignorance of the law was no excuse, the RPD observed that Ms. Galindo Camayo was an educated, sophisticated adult who could have sought information about the steps that she needed to take to secure her status in Canada. At root here was the bare assertion that ignorance of the law is no excuse under section 108, an assertion adopted without any statutory interpretation analysis. (b) Referring to Ms. Galindo Camayo’s evidence that she had engaged private security to protect her while she was in Colombia, the RPD stated that Ms. Galindo Camayo knew enough about the threats or harm that she faced in that country to hire private security to accompany her while she was there. According to the RPD, this indicated that Ms. Galindo Camayo recognized the dangers associated with travel to Colombia. However, the RPD never explains what the legal relevance of this was for the analysis under section 108. An interpretation of section 108 in light of its text, context and purpose would have assisted in this regard. (c) The RPD noted that refugee protection lasts only as long as the reasons for fearing persecution in the country of nationality persist. It accepted that merely obtaining a Colombian passport may not, by itself, be evidence of an individual’s intent to use it. However, Ms.", - "current_to": "2022-03-29", + "text": "In June, 1989, pro‑democracy students demonstrated in front of his restaurant. The appellant donated food and drinks and some money to support the students. From July 1989, until April 1990, officers of the Public Security Bureau (PSB) visited the appellant's restaurant ten or more times, usually the same group of four to six officers. The PSB officers accused the appellant of having participated in the pro‑democracy movement and of being a counter‑revolutionary. Staff and customers of the restaurant were interrogated. After the officers' second visit in mid‑July 1989, the appellant voluntarily reported to the local PSB office to write a confession of his pro‑democracy activities. The interrogatory visitations of PSB officers continued for months after this confession.\n\nIn November 1989, 12 years after their first child was born, the appellant's wife gave birth to their second child, thereby violating China's much publicized one-child birth policy. His evidence was that the PSB learned of the second child while conducting a census in April 1990. In late May 1990, the appellant and his family were accused by PSB officers and local neighbourhood committee members of violating China's birth control policy. The PSB officers immediately informed his wife's work unit of the family's population policy violation, causing her to lose her job.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-23", + "id": "scc-1299-4", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 60–61", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 6–8", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Galindo Camayo’s repeated use of her Colombian passport to visit Colombia and other countries was an indication that she intended to travel under the protection of the Colombian government and that she intended to reavail herself of the protection afforded her by her Colombian passport. However, the leap from merely carrying a Colombian passport to a finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unexplained. The RPD’s reasoning implies some undisclosed and unexplained understanding of what “intention” means, and by extension, an undisclosed and unexplained interpretation of section 108 of IRPA. (d) Finally, insofar as actual reavailment was concerned, the RPD found that Ms. Galindo Camayo’s years of travel to third countries on Colombian passports (where she could seek the assistance of the Colombian government if something went wrong), and her repeated trips to Colombia for reasons that were neither necessary nor compelling, demonstrated that she had actually reavailed herself of Colombia’s protection. This involved an unexplained determination of what falls within or outside section 108, and, more particularly, the meaning of the elements of intention, voluntariness and reavailment.\n\nKey to the assessment of the reasonableness of the RPD’s decision is whether it could rely on evidence of a refugee’s lack of subjective knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by her country of nationality has intended to avail herself of that state’s protection. On this point, there is jurisprudence in the Federal Courts that constrains the RPD’s decision-making in this area.", - "current_to": "2022-03-29", + "text": "PSB officers together with members of the neighbourhood committee visited the appellant's home on five different occasions in all before his flight from China. He testified that they insulted his family, calling them the \"enemy of the class\" and stating that they had purposely disobeyed the government's birth control policy, thereby causing the neighbourhood committee to be deprived of a low birth rate bonus. The officers demanded that the appellant pay a substantial fine and that either the appellant or his wife be sterilized. The appellant testified that the PSB officers stated that if neither he nor his wife was willing to be sterilized then one of them would be forced to submit to this procedure. The appellant's family discussed their dilemma and decided that, in order to prevent further PSB harassment, the appellant would give the PSB officers a signed document stating that he would agree to undergo sterilization within three months. The appellant testified, however, that he \"never thought of going to have this kind of cruel operation\".\n\nDuring the last of the five visits to the appellant's family home, the PSB officers demanded payment of the monetary sanction imposed for violation of the one-child policy. The appellant told the officers that his family did not have sufficient money to pay the fine.\n\nThe appellant left China on July 19, 1990, three weeks after the fifth visit of the PSB officers to his home, and before the expiration of the three-month period within which he had agreed to submit to sterilization. The appellant travelled initially to Hong Kong and, on July 23, 1990, proceeded to Canada where he immediately sought Convention refugee status. His hearing before the Board occurred 16 months after he left China.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-24", + "id": "scc-1299-5", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 62–64", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 9–10", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "It will be recalled that the first element of the test for cessation relates to the voluntariness of the individual’s actions. The RPD found that Ms. Galindo Camayo did not act voluntarily when she obtained and renewed her Colombian passports, but that she did act voluntarily when she used those passports to return to Colombia. No issue has been taken with respect to this latter finding. The question for the RPD then was whether Ms. Galindo Camayo intended by her actions to reavail herself of Colombia’s protection.\n\nAs noted earlier, there is a presumption that refugees who acquire and travel on passports issued by their country of nationality to travel to that country or to a third country have intended to avail themselves of the protection of their country of nationality. This is because passports entitle the holder to travel under the protection of the issuing country. This presumption is even stronger where refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, they are also entrusting their safety to governmental authorities upon their arrival.\n\nAs the Federal Court observed in Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), 2011 FC 1346, “[r]eavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to return to places where their personal security is in jeopardy”: at para. 8.", - "current_to": "2022-03-29", + "text": "Before the Board the appellant claimed that after his departure his family continued to be harassed by the PSB for violating the one-child policy. Appellant's counsel submitted in evidence two letters sent from the appellant's wife in China, respectively six and ten months after his arrival in Canada. These letters recounted further PSB and neighbourhood visits in which the authorities continued to seek the appellant, demanding his arrest and sterilization. According to the second letter, the authorities seized certain items of the family's personal property as security for the still unpaid fine. The appellant's wife expressed concern that if the fines were not paid, the couple's second child would not be able to be a registered household member, thereby affecting the child's future social benefits. Subsequent to the second letter, the appellant was informed by telephone that his wife was taken and detained overnight by the police. The appellant further testified that the neighbourhood committee prevented the appellant's wife from getting another job by refusing to exercise their authority to issue the requisite job replacement certificate. The appellant stated that if he were returned to China he could be imprisoned, permanently prevented from working, and possibly murdered. He testified that the government would not listen to his complaints and that the neighbourhood committee might attempt to exact revenge for having adversely affected the bonus of some of its members. Judgments Immigration and Refugee Board (Refugee Division) October 23, 1991\n\nBefore the Refugee Board, the appellant claimed refugee status on the grounds of his political opinion and his membership in a particular social group.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-25", + "id": "scc-1299-6", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 65–67", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 11–12", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Constraining case law from the Federal Court, suggests, however, that the presumption is a rebuttable one. The onus is on the refugee to adduce sufficient evidence to rebut the presumption of reavailment: Canada (Minister of Citizenship and Immigration) v. Nilam, 2015 FC 1154 at para. 26; Li v. Canada (Minister of Citizenship and Immigration), 2015 FC 459 at para. 42.\n\nThe RPD should therefore have carried out an individualized assessment of all of the evidence before it, including the evidence adduced by the refugee as to her subjective intent, in determining whether the presumption of reavailment has been rebutted in this case.\n\nMs. Galindo Camayo testified that she was not aware that using her Colombian passport to travel to Colombia and elsewhere could have consequences for her immigration status in Canada. The RPD rejected this claim, not because Ms. Galindo Camayo was not credible, but because it found that ignorance of the law was not a valid argument. The RPD noted that Ms. Galindo Camayo was an educated and sophisticated individual who could have sought information as to the requirements that she had to uphold in order to maintain her status in Canada. With respect, this misses the point.", - "current_to": "2022-03-29", + "text": "The Board first set forth the facts substantially as I have just given them. As Mahoney J.A. later observed, the Board neither made nor implied any adverse finding as to the credibility of his evidence, and the appellant's Personal Information Form and viva voce evidence are entirely consistent with one another.\n\nThe Board then proceeded to examine the appellant's claim on the stated grounds. As to membership in a particular social group, the Board identified the relevant group as his family, and dismissed his claim on that basis because it did not find the claimant had good ground for fearing persecution because of his family background. This portion of its reasons read as follows: Membership in a Particular Social Group This panel accepts that the various members of the claimant's family, including the claimant, have suffered persecution during the Cultural Revolution due to their family background. However, no evidence was adduced to suggest that the claimant was persecuted beyond the period of the Cultural Revolution. Furthermore, he was able to subsequently obtain a university education and several managerial positions. According to all the above, this panel does not find the claimant to have good grounds for fearing persecution based on his membership in a particular social group, namely, his family background.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-26", + "id": "scc-1299-7", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 68–70", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 13", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "If it were acting reasonably, at this point in its analysis, the RPD should have considered not what Ms. Galindo Camayo should have known, but rather whether she did subjectively intend by her actions to depend on the protection of Colombia. Having failed to find that Ms. Galindo Camayo’s testimony on this point lacked credibility, the RPD is deemed to have accepted her claim that she did not know that using her Colombian passport to return to Colombia and to travel elsewhere could result in her being deemed to have reavailed herself of Colombia’s protection, and that this was not her intent.\n\nThe Minister contends that the cessation provisions of IRPA would be stripped of any meaning if it was sufficient for an individual faced with a cessation application to simply state that they did not know that their actions could put their status in Canada in jeopardy. Not only did the Federal Court explicitly reject this argument, it also overstates the issue.\n\nAn individual’s lack of actual knowledge of the immigration consequences of their actions may not be determinative of the question of intent. It is, however, a key factual consideration that the RPD must either weigh in the mix with all of the other evidence, or properly explain why the statute excludes its consideration.", - "current_to": "2022-03-29", + "text": "The Board then considered the appellant's claim to refugee status on the basis of well-founded fear of persecution because of his political opinion on two separate bases. First it found that the appellant did not have good grounds for fearing persecution by reason of his political opinion as manifested through his pro‑democracy activities. It then dealt with the appellant's allegation of a fear of persecution by being forced to undergo sterilization, which became the principal issue on appeal. The Board dismissed this ground because it did not find sterilization to be a form of persecution for a Convention reason, but rather as a government measure to implement a general family planning policy. There was, it added, no evidence adduced to suggest the appellant would be physically abused during the sterilization process. It also noted the appellant's testimony that he did not wish to have any more children. The Board, in consequence, held that the appellant's claim on this ground to be unfounded. Its reasons regarding political opinion read: Political Opinion Sometime between July and August 1989, the claimant voluntarily handed in a written confession of his pro‑democracy activities to the PSB. Thereafter, the claimant remained in the PRC until July 1990. Subsequent to his confession, the PSB officers visited the claimant's restaurant on numerous occasions to conduct interrogations of the claimant, his staff, and his customers on the subject of the pro‑democracy movement. The claimant was present during three such interrogations. Despite their knowledge of the claimant's participation in the pro‑democracy activities, the PSB never arrested or detained him, even though they had ample opportunity.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-27", + "id": "scc-1299-8", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 71–74", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 13–15", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "In order for it to make a reasonable decision, the RPD was required to take account of the state of Ms. Galindo Camayo’s actual knowledge and intent before concluding that she had intended to reavail herself of Colombia’s protection. I agree with the Federal Court that without this analysis, the RPD’s conclusion on reavailment was not a defensible outcome based on the constraining facts and law, and that it was thus unreasonable: Cerna v. Canada (Minister of Citizenship and Immigration), 2015 FC 1074 at paras. 18-19; Mayell v. Canada (Minister of Citizenship and Immigration), 2018 FC 139 at paras. 17-19.\n\nThe RPD also conflated the question of voluntariness with that of intention to reavail and this led, in part, to an unreasonable decision. Much of the RPD’s analysis of the intention issue is taken up with an examination of the reasons cited by Ms. Galindo Camayo for returning to Colombia. I agree with Ms. Galindo Camayo that the question of whether one intended to reavail oneself of the protection of one’s country of origin has nothing to do with whether the motive for travel was necessary or justified: Federal Court decision at para. 31.\n\nKey to the assessment of the reasonableness of the RPD decision is whether it could rely on evidence that Ms. Galindo Camayo took measures to protect herself against her agent of persecution while she was in Colombia to rebut the presumption of reavailment.\n\nAccording to Ms. Galindo Camayo, her family engaged the services of professional security guards to protect her on each of her trips to Colombia, and documentary evidence from security companies was provided to support her evidence in this regard.", - "current_to": "2022-03-29", + "text": "Furthermore, no evidence was adduced to suggest that the investigation into the matter of the claimant's involvement with the pro‑democracy movement went beyond April 1990. Finally, the claimant's family encountered no difficulties in renewing the claimant's driver's licence (exhibit # 3) with the PSB in December 1990, five months after the claimant had fled the PRC. Based on the evidence, this panel does not find the claimant to have good grounds for fearing persecution by reason of his political opinion as manifested through his pro‑democracy activities. The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well‑founded.\n\nThe Board accordingly found that the appellant was not a Convention refugee. Federal Court of Appeal, [1993] 3 F.C. 675\n\nAn appeal to the Court of Appeal was dismissed by a majority; Heald and Desjardins JJ.A. gave separate reasons. Mahoney J.A. dissented. Heald J.A.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-28", + "id": "scc-1299-9", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 75–78", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 16–17", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "The RPD appears to have accepted Ms. Galindo Camayo’s evidence on this point. It found however that while she might not have been fully aware of the reasons why her family had fled Colombia, Ms. Galindo Camayo knew enough about the dangers associated with travel to Colombia to engage private security personnel to accompany her while she was there.\n\nGiven that the discussion with respect to Ms. Galindo Camayo’s use of private security takes place in the section of the RPD’s reasons dealing with intention, it appears that the RPD understood this evidence to support its conclusion that by travelling to Colombia, Ms. Galindo Camayo intended to reavail herself of that country’s protection.\n\nI agree with Ms. Galindo Camayo that this was an unreasonable finding: the evidence with respect to her use of private security while she was in Colombia speaks not to her intention to entrust her protection to Colombia, but is, rather, to the opposite effect. It is evidence of Ms. Galindo Camayo’s ongoing subjective fear of the situation in Colombia, and her lack of confidence in the ability of the state to protect her.\n\nOnce again, Ms. Galindo Camayo’s evidence on this point was not necessarily determinative of the issue of intent, and it was open to the RPD to reject it. However, it had to at least consider it properly and, if it found it not to be probative or persuasive, to explain why that was the case. Its failure to do so in this case is a further reason for concluding that the RPD’s decision was unreasonable.", - "current_to": "2022-03-29", + "text": "Heald J.A. initially noted the appellant's oral submission that the sole issue he would be raising was \"the sterilization issue\". He added that there was support on the record for the Board's finding that the appellant was neither persecuted because of his family membership nor because of his political opinion, so that these findings should not be disturbed. This left as the sole issue whether coerced sterilization could give rise to a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.\n\nOn the latter issue, Heald J.A. observed, at p. 686, that in Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), a decision rendered shortly before the present case, the court had concluded, at p. 322, that \"forced or strongly coerced sterilization\" constituted persecution since sterilization violated a woman's security of the person and subjected her to cruel, inhuman and degrading treatment. He agreed that it had not been shown that sterilization of a man was qualitatively different from that of a woman and that, therefore, forced or strongly coerced sterilization would amount to persecution.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-29", + "id": "scc-1299-10", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 79–81", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 18–19", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Before concluding this portion of these reasons, I would note that the RPD appears to have considered Ms. Galindo Camayo’s use of her passport to travel to Colombia as satisfying all three elements of the test for reavailment (voluntary, intentional, and actual reavailment). This is evident from paragraph 22 of its reasons, where it found that Ms. Galindo Camayo’s use of her Colombian passport for travel was voluntary. Similarly, at paragraph 31 of its reasons the RPD found that Ms. Galindo Camayo’s use of her Colombian passport showed her intention to travel under the protection of Colombia, and paragraph 34 of its reasons, where the RPD found that Ms. Galindo Camayo’s use of her Colombian passport to travel to Colombia and elsewhere was evidence of actual reavailment. This approach left little room for Ms. Galindo Camayo to demonstrate that even though she had used her Colombian passport for travel, she did not intend to avail herself of the protection of that country.\n\nThis case represents the first opportunity that our Court has had to deal with a cessation case since the Supreme Court’s decision in Vavilov. As such, the RPD may benefit from our guidance in this area. It would also be unfortunate if we remitted this case for redetermination and the RPD was to repeat some of the errors that occurred in this case, potentially leading to the “endless merry-go-round of judicial reviews and subsequent reconsiderations” that the Supreme Court cautioned against in Vavilov: above, at para. 142.\n\nIt should be noted, however, that in providing this guidance, the Court is not recommending or suggesting any outcome one way or the other in relation to the cessation application involving Ms. Galindo Camayo. The merits of the redetermination are for the RPD to determine.", - "current_to": "2022-03-29", + "text": "Heald J.A. then noted, however, that in Cheung a distinction had been made between women who have more than one child and have a reasonable fear of forced sterilization and those who have more than one child but do not have such a fear. Only the former could claim a well‑founded fear of persecution under the Refugee Convention. He recognized that forced sterilization is not a law of general application in China, but rather an enforcement measure taken by some local authorities and tacitly accepted by the central government. He observed that the reasonable chance that acceptable sanctions such as economic measures might exist made the determination of whether or not a person has a well‑founded fear of persecution a subtle finding of fact.\n\nHeald J.A. contrasted the record of the present case to the uncontested testimony in Cheung, and found on the evidence that the appellant had a well‑founded fear of persecution equivocal. He seized upon specific portions of the appellant's translated testimony as revealing ambiguity by the appellant on whether or not he faced a reasonable chance of sterilization. Heald J.A. observed that the appellant's testimony evidenced the imposition of important economic sanctions which, as Cheung indicated, were not sufficient to establish persecution. Upon a consideration of the evidence, Heald J.A. remained unconvinced that the appellant had a well-founded fear of persecution in the form of sterilization. Nonetheless, he proceeded to consider the second branch of the Convention refugee test, the enumerated grounds, i.e., membership in a \"particular social group\" and \"political opinion\".", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-30", + "id": "scc-1299-11", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 82–83", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 20", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted earlier, the RPD’s reasons on the redetermination need not involve a microscopic examination of everything that could possibly be said on the matter. There need only be a reasoned explanation concerning the relevant evidence and key issues, including the key arguments made by the parties: Sexsmith v. Canada (Attorney General), 2021 FCA 111 at para. 36.\n\nMoreover, as the Federal Court observed in this case, the outcome in each cessation proceeding will be largely fact-dependent. I further agree with the submission of the intervener, United Nations High Commissioner for Refugees, that the test for cessation should not be applied in a mechanistic or rote manner. The focus throughout the analysis should be on whether the refugee���s conduct—and the inferences that can be drawn from it—can reliably indicate that the refugee intended to waive the protection of the country of asylum.", - "current_to": "2022-03-29", + "text": "Heald J.A., at p. 691, considered the appellant's particular social group as \"parents in China with more than one child who disagree with forced sterilization\". That group did not, he noted, fall within any of the three categories set out in the working rule in Ward, at p. 739, namely: (1) groups defined by an innate or unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The group did not fall within the first category because the number of offspring one has is neither innate nor unchangeable. The conditions of the second category were also not met because of the lack of voluntary association amongst members of this group. Finally, he noted that the group failed the third Ward category because it had no historical permanence.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-31", + "id": "scc-1299-12", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 21", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Thus, in dealing with cessation cases, the RPD should have regard to the following factors, at a minimum, which may assist in rebutting the presumption of reavailment. No individual factor will necessarily be dispositive, and all of the evidence relating to these factors should be considered and balanced in order to determine whether the actions of the individual are such that they have rebutted the presumption of reavailment. The provisions of subsection 108(1) of IRPA, which operate as a constraint on the RPD in arriving at a reasonable decision: Vavilov SCC, above at paras. 115-124; The provisions of international conventions such as the Refugee Convention and guidelines such as the Refugee Handbook, as international law operates as an important constraint on administrative decision makers such as the RPD. Legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with ... the values and principles of customary and conventional international law”: Vavilov SCC, above at para. 114, citing R. v. Hape, 2007 SCC 26 at para. 53; R. v. Appulonappa, 2015 SCC 59 at para. 40; see also IRPA, paragraph 3(3)(f). The severity of the consequences that a decision to cease refugee protection will have for the affected individual. Where the impact of a decision on an individual's rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov SCC, above at paras. 133-135; The submissions of the parties. The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully engage with the central issues and the concerns raised by the parties: Vavilov SCC, above at paras.", - "current_to": "2022-03-29", + "text": "Heald J.A. then elaborated upon his finding that the appellant's particular social group failed to meet any of the Ward categories. He noted that while parents who have breached the one-child policy are identifiable, the sub‑group of those persons faced with sterilization could not be recognized until after the treatment had been ordered. Indeed, he found that the group was defined solely by the fact that its members face a particular form of persecutory treatment; the finding of membership in a particular social group was dictated by the finding of persecution. Heald J.A. found that to employ this logic would reverse the statutory definition in which persecution must be driven by one of the enumerated grounds and not the inverse. He also noted, at p. 693, that Ward had rejected an approach whereby groups were defined \"merely by virtue of their common victimization as the objects of persecution\". He decided that the appellant's fear clearly stemmed from what he did as opposed to what he was.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-32", + "id": "scc-1299-13", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 22", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "127-128; The state of the individual’s knowledge with respect to the cessation provisions. Evidence that a person has returned to her country of origin in the full knowledge that it may put her refugee status in jeopardy may potentially have different significance than evidence that a person is unaware of the potential consequences of her actions; The personal attributes of the individual such as her age, education and level of sophistication; The identity of the agent of persecution. That is, does the individual fear the government of her country of nationality or does she claim to fear a non-state actor? Evidence that a person who claims to fear the government of her country of nationality nevertheless discloses her whereabouts to that same government by applying for a passport or entering the country may be interpreted differently than evidence with respect to individuals seeking passports who fear non-state actors. In this latter situation, applying for a passport or entering the country will not necessarily expose the individual to their agent of persecution. This may be especially so when all the individual has done is apply for a passport: applying for a passport may have little bearing on the risk faced by a victim of domestic violence, for example, or her level of subjective fear; Whether the obtaining of a passport from the country of origin is done voluntarily; Whether the individual actually used the passport for travel purposes.", - "current_to": "2022-03-29", + "text": "Heald J.A. then considered the argument that a failure by a citizen to agree to sterilization under the policy in force in China was tantamount to a political statement in that it would be perceived as an anti‑governmental political opinion, which would constitute a well‑founded fear of persecution. He examined the appellant's testimony and found there was little evidence to support such a finding. Although this Court in Ward, at p. 746, adopted a broad definition of political opinion ‑‑ \"any opinion on any matter in which the machinery of state, government, and policy may be engaged\" ‑‑, some limits on the definition of political opinion were required to prevent the enumerated grounds from being obviated. The persecutory treatment emanated not from a refusal to submit to sterilization but from breach of the one-child policy which he likened to a breach of a provision of Canada's Criminal Code , generally not viewed as a political statement. He could see no evidence that the authorities perceived the appellant's acts as a political statement or as a challenge to their authority. Heald J.A. then considered that the population policy was well within the jurisdiction of the Chinese government, and could not, in itself, be categorized as persecutory. While Heald J.A. abhorred the penalty, he concluded, at p. 696, that the appellant had not succeeded in establishing that the alleged persecution was by reason of \"political opinion\". Desjardins J.A.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-33", + "id": "scc-1299-14", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 23", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "If so, was there travel to the individual’s country of nationality or to third countries? Travel to the individual’s country of nationality may, in some cases, be found to have a different significance than travel to a third country; What was the purpose of the travel? The RPD may consider travel to the country of nationality for a compelling reason such as the serious illness of a family member to have a different significance than travel to that same country for a more frivolous reason such as a vacation or a visit with friends; What the individual did while in the country in question; Whether the individual took any precautionary measures while she was in her country of nationality. Evidence that an individual took steps to conceal her return, such as remaining sequestered in a home or hotel throughout the visit or engaging private security while in the country of origin, may be viewed differently than evidence that the individual moved about freely and openly while in her country of nationality; Whether the actions of the individual demonstrate that she no longer has a subjective fear of persecution in the country of nationality such that surrogate protection may no longer be required; and Any other factors relevant to the question of whether the particular individual has rebutted the presumption of reavailment in a given case. · The frequency and duration of the travel;", - "current_to": "2022-03-29", + "text": "The other majority judge, Desjardins J.A., noted that while she found the appellant's testimony and evidence not free from ambiguity, she would not decide this appeal on its facts alone, choosing instead to address the highly complex issues regarding the meaning of the terms \"particular social group\", \"political opinion\", and \"persecution\".", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-520921-34", + "id": "scc-1299-15", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 85", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 24", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "For these reasons, I would dismiss the appeal. I would answer the certified questions and, in the case of the second and third questions, the questions as reformulated, as follows: (1)Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? This question no longer needs to be answered. (2)Is it reasonable for the RPD to rely upon evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? Yes. (3)Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection? Yes. \"Anne L. Mactavish\" J.A. “I agree. David Stratas J.A.” “I agree. Marianne Rivoalen J.A.”", - "current_to": "2022-03-29", + "text": "Desjardins J.A. quickly disposed of the contention that the appellant belonged to a \"particular social group\" under the second or third branches of the Ward working rule because these involved a voluntary status and there was none here. Turning then to the first branch, \"a group `defined by an innate or unchangeable characteristic'\", she found that the \"innate or unchangeable characteristic\" had to be distinguished from the basic human right which the group might defend. The innate characteristic had to be so strong that it would make a group of individuals what they are, independently of that for which they fight. While she accepted that forced sterilization violated the basic human right of reproductive control, Desjardins J.A. found that while the basic rights of the group were threatened, the appellant's group was not affiliated in so fundamental a manner as to qualify as a particular social group. A violation of a basic human right did not, by itself, create a \"particular social group\". She stated, at p. 721: The appellant is essentially targeted because of what he did (i.e., he violated the one‑child policy) and not because of what he is (i.e., a Chinese father). The reprimand, i.e., forced sterilization, is in violation of his basic human right, but this right is common to humanity, not common to his group. He objects, rightly so, to forced sterilization. But that is what he is fighting against. It cannot be an \"innate\" characteristic of his group. [Emphasis in original.]", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-1", + "id": "scc-1299-16", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 1–4", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 25–27", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "This is an appeal by the Attorney General of Canada from a decision of the Canadian International Trade Tribunal (CITT), reported as Best Buy Canada Ltd., 2019 CanLII 110846 (CA CITT), 2019 CarswellNat 14479 (WL Can) [Best Buy (CITT 2019)]. In that decision, the CITT classified television stands imported by the respondent, Best Buy Ltd., as “parts” of televisions, under tariff item No. 8529.90.90 of the schedule to the Customs Tariff, S.C. 1997, c. 36.\n\nThe CITT decision under appeal was itself a reconsideration of an earlier CITT decision, reported as Best Buy Canada Ltd., 2017 CanLII 149295 (CA CITT), 22 T.T.R. (2d) 57 [Best Buy (CITT 2017)]. Canada appealed the 2017 decision to this Court, which remitted the matter back to the CITT, Canada v. Best Buy Canada Ltd., 2019 FCA 20, 2019 CarswellNat 168 (WL Can) [Best Buy (FCA 2019)], which in turn maintained its original result. Canada once again appeals the CITT’s decision.\n\nThis appeal raises the question of whether this Court may review a CITT decision for issues other than questions of law, contrary to the wording of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). In my view, subsection 67(3) and section 68 of the Customs Act preclude this Court from reviewing CITT decisions for errors of fact or mixed fact and law that are not so egregious as to rise to the level of errors of law.\n\nCanada alleges the CITT both erred in law, and in applying the law to the facts of the case. I am not convinced that the CITT made an error of law. Further, given my conclusion that this Court may only review CITT decisions on questions of law, I would accordingly dismiss the appeal.", - "current_to": "2021-08-05", + "text": "She further found that the procedure carried out by some local officials in China was not a sterilization policy to prevent childbearing, but was instead a measure of punishment for excess births. She noted that the policy itself had not been challenged before the court and therefore remained legitimate.\n\nDesjardins J.A. then examined whether there was any basis for a claim on the ground of political opinion, under the guidelines provided by this Court in Ward. She considered whether the appellant's action, motivated in defence of his basic human rights, could be viewed by the Chinese local authorities as a gesture of defiance to the national authority, particularly since that country was governed by an authoritarian form of government. Absent specific evidence, however, she hesitated to make such an inference considering that local authorities enforced the sterilization policy.\n\nDesjardins J.A. added, however, that she preferred not to decide the case on the sole basis of lack of evidence, so she proceeded to a substantive examination of the issues as framed by the appellant. The claimant's objection, she noted, related to the means employed by some local authorities to enforce a general policy. This, she stated, raised two questions: first, whether forced sterilization as a measure of population control amounted to \"persecution\" under the Convention relating to the status of refugees and the Immigration Act, and second what the scope of the Convention itself should be.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-2", + "id": "scc-1299-17", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 5–8", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 28–30", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "The goods in issue, which I refer to as “the Best Buy stands”, are metal and wooden models of floor stands for flat-panel televisions. On October 2, 2014, Best Buy requested an advance ruling from the CBSA on the tariff classification of the goods. Best Buy, relying on an earlier CITT decision dealing with similar floor stands, Sanus Systems v. President of the Canada Border Services Agency (8 July 2010), AP-2009-007 (CITT), 2010 CarswellNat 5288 (WL Can), 14 T.T.R. 576 [Sanus Systems], sought to have the goods classified under tariff item No. 8529.90.90.\n\nPrior to issuing its advance ruling on the Best Buy stands, the CBSA, in August 2015, filed a request with the World Customs Organization (WCO) Harmonized System Committee (the “WCO Committee”) for guidance on the tariff classification of audio-visual carts designed to hold televisions and other audio-visual apparatuses. The request informed the WCO Committee of the CITT ruling in Sanus Systems and set out the CBSA’s position that the goods in Sanus Systems were not “parts” of televisions but instead “furniture”.\n\nThe WCO Committee held a vote and decided to direct the Secretariat to prepare Classification Opinions classifying television stands like those at issue in Sanus Systems as “furniture”, not “parts” of televisions. The Classification Opinions were published on June 1, 2016. I refer to the stands covered by these Classification Opinions as “the WCO stands”.\n\nIn July 2016, the CBSA provided Best Buy with its advanced ruling on the goods in issue, classifying them as “furniture” under tariff heading No. 94.03, in accordance with the Classification Opinions.", - "current_to": "2021-08-05", + "text": "As to the first question, Desjardins J.A. acknowledged that the term persecution itself was broad but, as the record was silent as to the medical procedure followed, she found, at p. 724, that she \"must assume . . . that it is carried out through a normal [medical] procedure currently in use by those who voluntarily opt for this procedure elsewhere, including this country\".\n\nAs to the second question, Desjardins J.A. held, at p. 724, that since the validity of the Chinese government's population control policy was not in question, it could not be said \"that when a foreign government employs means that violate basic human rights, as known in Canada, so as to ensure the respect of a valid social objective, such means amount to `persecution' under the Convention\". She found that the Convention was not meant to protect those who resist the realization of valid state objectives but rather those who become victims by virtue of the pursuit of illegitimate goals by the state. Mahoney J.A. (dissenting)\n\nLike Heald J.A., Mahoney J.A. began by observing that the appellant's counsel had chosen not to argue any of the grounds raised in her memorandum but, instead, relying entirely on the Cheung case, supra, asserted, at p. 705, a claim based solely on the appellant's fear of sterilization as a member of a particular social group, namely, \"parents in China with more than one child who do not agree with the Government's sterilization policy\". Under these circumstances, he found it necessary to confine himself to the sterilization ground.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-3", + "id": "scc-1299-18", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 9–11", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 31–32", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Best Buy appealed to the CITT, which allowed the appeal: Best Buy (CITT 2017). Canada appealed the CITT’s decision to this Court, which allowed the appeal and remitted the matter back to the CITT for reconsideration.\n\nIn remitting the matter, this Court relied on section 11 of the Customs Tariff, which reads: Interpretation Interprétation de la liste des dispositions tarifaires 11 In interpreting the headings and subheadings, regard shall be had to the Compendium of Classification Opinions to the Harmonized Commodity Description and Coding System and the Explanatory Notes to the Harmonized Commodity Description and Coding System, published by the Customs Co-operation Council (also known as the World Customs Organization), as amended from time to time. 11 Pour l’interprétation des positions et sous-positions, il est tenu compte du Recueil des Avis de classement du Système harmonisé de désignation et de codification des marchandises et des Notes explicatives du Système harmonisé de désignation et de codification des marchandises et de leurs modifications, publiés par le Conseil de coopération douanière (Organisation mondiale des douanes).\n\nThis Court found that, “[a]lthough the Opinions were relevant because they dealt with goods that were materially the same as those before the Tribunal, the Tribunal failed to consider or have regard to the Opinions as required under the Customs Tariff”: Best Buy (FCA 2019) at para. 5. It thus remitted the matter with instructions to the CITT to have regard to the Opinions in its redetermination.", - "current_to": "2021-08-05", + "text": "Having examined the record, he then cited, at p. 702, the penultimate paragraph of the refugee panel's reasons as being the \"entirety of the decision\" dealing with the appellant's fear of sterilization, which reads: The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well‑founded.\n\nMahoney J.A. then reviewed the Board's decision, at p. 702. He first observed that \"[t]he suggestion that evidence is necessary to establish that forced sterilization entails physical abuse calls into question the panel's understanding of what is meant by `physical abuse' in any ordinary sense of the term\". He then added that the appellant's testimony that he did not wish to have more children and another remark expressing his personal intention did not support a conclusion that his fear of persecution in the form of forced sterilization was not well‑founded, because there was no suggestion that the authorities shared his opinion or that he thought they did.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-4", + "id": "scc-1299-19", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 12–13", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 33–34", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "The CITT maintained its position that the WCO Classification Opinions, which dealt with wheeled audio/video equipment floor stands, were not relevant in the classification of the Best Buy stands, the latter being television-specific, non-wheeled floor stands. It reiterated that, “[h]aving had regard to the classification opinions, the Tribunal finds that they cover goods of different form and function than the goods at issue”: Best Buy (CITT 2019) at para. 14. This was material because, in the CITT’s view, the goods in issue were more like cases and cabinets than those covered by the classification opinion. The explanatory notes to heading No. 85.29, which captures “Parts suitable for use solely or principally with the apparatus of headings 85.25 to 85.28”, explicitly includes cases and cabinets specialized to receive televisions: Best Buy (CITT 2019) at para. 14.\n\nFinally, the CITT repeated at length its rejection, as set out in its original decision, of Canada’s argument that “parts” of televisions must be articles essential to the functionality of the devices: Best Buy (CITT 2019) at paras. 19–20. It therefore maintained its original decision, namely that the floor stands are “parts” of televisions, rather than “furniture”.", - "current_to": "2021-08-05", + "text": "Mahoney J.A. then concluded these preliminary comments, at p. 702, by stating that \"[t]he validity of the tribunal's finding that `sterilization (is not) a form of persecution for a Convention reason' depends entirely on the qualification `for a Convention reason'\".\n\nThe remainder of his reasons are devoted to that issue. In undertaking that task Mahoney J.A. first considered the case of Cheung, in which a unanimous panel of the Federal Court of Appeal consisting of himself, Linden and Stone JJ.A. had previously decided that forced sterilization fell within the definition of persecution as contemplated by the Convention refugee definition. He cited (at p. 703) from the reasons of Linden J.A. who stated: Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in pursuit of a legitimate end is still brutality. The forced sterilization of a woman is a fundamental violation of basic human rights. It violates Articles 3 [life, liberty and security of the person] and 5 [cruel, inhuman or degrading treatment or punishment] of the United Nations Universal Declaration of Human Rights.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-5", + "id": "scc-1299-20", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 14–15", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 35", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Canada launched this appeal in September 2019, prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. It also filed its written submissions in March 2020, prior to this Court’s decisions in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 (WL Can) [Neptune]; and Canada (Attorney General) v. Impex Solutions Inc., 2020 FCA 171, 2020 CarswellNat 4332 (WL Can) [Impex]. In Vavilov, the Supreme Court of Canada changed how courts must treat appeals from administrative tribunals. In Neptune and Impex, this Court addressed how these changes impact the way it must conduct appeals from CITT decisions under section 68 of the Customs Act, which are limited to questions of law. In Neptune, Rennie J.A. posited that “[t]here may nonetheless be judicial review of questions of fact or mixed fact and law from which a legal issue cannot be extricated by virtue of general principles and section 28 of the Federal Courts Act”: at para. 15. However, in both Neptune and Impex, this Court found that the issues before it were questions of law that fell within the ambit of section 68. Rennie J.A.’s comments in Neptune were therefore obiter dicta.\n\nIn its written submissions, Canada argued that it is a question of law whether the CITT had sound reason to, in this case, disregard the WCO Classification Opinion. The standard of review on an appeal from a CITT decision on a question of law, by way of section 68 of the Customs Act, is now correctness: Vavilov at para. 37; Neptune at para. 18; Impex at para. 32.", - "current_to": "2021-08-05", + "text": "Mahoney J.A. then referred, at p. 704, to E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, in which this Court found, in the case of a female incompetent, that non‑therapeutic sterilization without consent was a \"grave intrusion on a person's rights\" and an \"irreversible and serious intrusion on the basic rights of the individual\". He found no distinction between the sexes that would alter this characterization. Mahoney J.A. stated, at p. 704, that \"[w]hatever view may be taken of the other sanctions by which the population control policy is enforced, involuntary sterilization ‑‑ physical abuse that is an irreversible and serious intrusion on the basic rights of the individual ‑‑ is persecution\". The evidence, he noted, indicated that the central government, by its passivity, either tolerated or abetted the excesses of local officials in their enforcement of its population control policy by means it officially disavowed. He concluded that a well‑founded fear of sterilization amounted to a well‑founded fear of persecution and, on the evidence, that the appellant's fear of sterilization were he returned to China was both subjectively and objectively well‑founded.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-6", + "id": "scc-1299-21", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 16–19", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 36", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "However, Canada also argued that the CITT’s application of the law to the facts was unreasonable. Canada argued that the CITT considered irrelevant factors in reaching its conclusion about the inapplicability of the WCO Classification Opinion: namely, the practices and procedures of the WCO Committee; and the opinion of an interior designer who testified as a witness. Canada acknowledged that these were, in both instances, issues of mixed fact and law.\n\nIn light of the obiter comments made in Neptune, Canada requested, and was granted, time after the hearing of this case to make additional submissions on the issue of whether matters other than questions of law are reviewable and, if so, via what procedure and under which standard of review?\n\nIn its supplementary submissions, Canada argued that judicial review of CITT decisions on questions of mixed fact and law that do not rise to the level of an error of law is available via an application for judicial review, under paragraph 28(1)(e) of the Federal Courts Act, R.S.C. 1985, c. F-7. In its supplementary submissions, Best Buy agreed with this proposition. Both parties agreed that the standard of review on such questions of fact or mixed fact and law is reasonableness.\n\nHowever, Canada also acknowledged that the Supreme Court’s decision in Vavilov has now cast doubt on this proposition and, performing a role it submitted was somewhat akin to that of an amicus curiae, Canada presented arguments against this Court accepting jurisdiction to review CITT decisions on the basis of errors of fact or mixed fact and law that are not sufficiently egregious to rise to the level of questions of law as contemplated by the operation of subsection 67(3) and section 68 of the Customs Act.", - "current_to": "2021-08-05", + "text": "Mahoney J.A. then proceeded to determine whether the reason for persecution was membership in a particular social group and, if so, whether that social group fell within one of the categories identified in Ward. He found no meaningful distinction between the particular social group identified in Cheung and the present case. That case, he stated, held that women in China who have more than one child and were faced with forced sterilization are to be considered as a \"particular social group\". He dismissed as unacceptable the submission of the appellant's counsel that the social group in issue was women in China with more than one child who do not agree with the government's sterilization policy.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-7", + "id": "scc-1299-22", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 20–21", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 37", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Thus, before addressing the issue of whether the CITT’s application of the law to the facts was reasonable, this Court must first decide whether it has jurisdiction to review the CITT’s decision on such questions of mixed fact and law.\n\nFinally, if this Court did conclude that it has jurisdiction to review CITT decisions for errors beyond the scope of the appeal as set out in section 68 of the Customs Act, it would also be required to determine how, as a matter of procedure, this review can be conducted. Generally, past practice in statutory appeals under the Customs Act was to review the CITT decision for reasonableness on the whole: see e.g. Igloo Vikski Inc. v. Canada (Border Services Agency), 2014 FCA 266, 2014 CarswellNat 4603 (WL Can) at para. 2 [Igloo Vikski (FCA)], reversed but not on that point, Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski (SCC)]. Both parties agreed that, after Vavilov, a separate application for judicial review would be necessary. Thus if this Court were to decide it could review the CITT decision for errors beyond those contemplated by section 68 of the Customs Act, it would also have to determine how to deal with the procedural challenge caused by requiring separate proceedings for review of matters of law—under section 68 of the Customs Act—and on any of the other grounds for review under the Federal Courts Act.", - "current_to": "2021-08-05", + "text": "Mahoney J.A. then observed that if under the refugee determination process it was decided that the reason for the persecution was membership in a particular social group, the next question was whether that social group fell within one of the categories identified in Ward. To assist in the latter determination, he posed the question (at p. 707): \"is the personal characteristic shared by members of the group analogous to race, religion, nationality or political opinion in that it is either unchangeable because it is innate or a fact rendered permanent by history or, although changeable, so fundamental to their human dignity that they should not be forced to abandon it?\" He then applied the Ward working rule and decided, at pp. 707-8, that: As to the second and third categories, I take the notion of \"voluntary association\" to be an antonym to the \"innate or unchangeable characteristics\" of the first, and not to imply that an organization has necessarily been joined or an association formed. That would appear to accord with the \"normal\" definition of the UNHCR Handbook. 77. A \"particular social group\" normally comprises persons of similar background, habits or social status. . . . I have been unable to conceive of a reason, fundamental to human dignity, for persons to associate formally which would not result in a membership that was either religious or expressive of political opinion and, thus, obviate the need for recourse to the particular social group class of the definition. In my opinion, it is the shared reason fundamental to their human dignity that defines and constitutes the second group. A conscious act of association is not an essential element.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-8", + "id": "scc-1299-23", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 22–24", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 37–38", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, the CITT did not err in law by declining to classify the Best Buy stands in accordance with the WCO Classification Opinion. Further, the only mechanism for review of a CITT decision made under the Customs Act is the section 68 appeal. Given that appeals under section 68 are limited in scope to questions of law, I am of the view that CITT tariff classification decisions may not be interfered with unless an extricable legal error warrants this Court’s intervention. Given my conclusion on this issue, it is unnecessary to deal with the procedural problems conducting such a review would pose.\n\nCanada contends that the CITT, by considering the process by which the WCO produces a classification opinion, made an error in law when it decided the Opinions do not apply in this case. According to Canada, interpreting and applying WCO Explanatory Notes and Classification Opinions are questions of law, reviewable on a correctness standard.\n\nIn my view, Canada has failed to demonstrate that the appeal raises an extricable legal question to which this Court must provide the correct answer. While I agree that interpretation of how the different provisions of the Customs Tariff interact will generally raise questions of law (see e.g. Impex at para. 40; Neptune at para. 18), the actual application of the provisions to a set of facts is more likely to be a matter of mixed fact and law: Impex at para. 34, citing Canada (Border Services Agency) v. Decolin Inc., 2006 FCA 417, 356 N.R. 284 at para. 41. In other words, whether a specific product fits the description of a tariff item number, in light of its physical characteristics and relevant Explanatory Notes and Classification Opinions, will generally not be a question of law.", - "current_to": "2021-08-05", + "text": "I should add that he had earlier noted that the working rules in Ward were framed in terms of individuals rather than organized groups.\n\nMahoney J.A. then cited (at p. 709) a passage from Cheung, previously approved by this Court in Ward: All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman's reproductive liberty is a basic right \"ranking high in our scale of values\". And he noted, at p. 709, the observation in Ward that this approach placed \"the focus of the inquiry . . . on the basic right of reproductive control\". Finally, Mahoney J.A. observed, at p. 709, that \"[n]othing in Cheung suggests that the claimant had adhered to any sort of a formal association\".", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-9", + "id": "scc-1299-24", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 25–26", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 39", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "It is possible that a reviewable error of law may be extricated from a CITT finding of fact or application of law to the facts. For example, findings of fact must generally be supported by evidence, and making a finding of fact without any supporting evidence has often been characterized as an error of law, as opposed to one of fact: see e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, 24 D.L.R. (4th) 453 at p. 604, cited with approval in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at para. 25. Thus an egregiously incorrect and unsupported finding of fact would be reviewable on a section 68 appeal.\n\nThe CITT’s application of the relevant law may also be reviewable for an error of law if, in applying a legal rule or principle, it effectively misinterpreted or undermined the rule or principle. As the Supreme Court, Iacobucci J.A., put it in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 39: […] After all, if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.", - "current_to": "2021-08-05", + "text": "In concluding Mahoney J.A. expressed his profound disagreement with the notion that the legitimacy of the population control policy excluded persecution in pursuit of it from the Convention refugee definition. He would have allowed the appeal, set aside the decision of the Refugee board and declared the appellant to be a Convention refugee on the following basis (at pp. 709-10): I understand Eve to be authority for and Ward, by its treatment of Cheung, to approve the proposition that the right to reproductive control is fundamental to human dignity. If it may be correctly said that, as in Ward, this appellant is threatened by persecution for what he (and his wife) did, not for what they were, what they and each of them, did ‑‑ exercise a fundamental human right to reproductive control ‑‑ is very different in quality to what Ward had done and identical to what Ms. Cheung (and her husband) had done. . . . In my opinion, this case is not distinguishable from Cheung and nothing in Ward casts any doubt on the correctness of the Cheung decision. Quite the contrary. The Appeal Before This Court", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-10", + "id": "scc-1299-25", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 27", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 40", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, this Court’s analysis of one of the issues raised in Impex illustrates this principle at work with regard to a CITT tariff classification decision. The case dealt with whether certain disposable shoe coverings were plastic or textile. This Court determined that, in misapplying the tariff schedule, the CITT had effectively erred in law. The relevant portion reads as follows: [41] I am also satisfied that the appellant’s second ground of appeal, which concerns the Tribunal’s alleged failure to consider Note 1 to Chapter 39 upon determining that the goods in issue were articles of plastics, raises a question of law. The appellant contends that this Note directed the Tribunal to determine first whether the goods’ constituent material was a textile defined in Section XI, and more particularly a nonwoven defined in the Explanatory Notes to heading No. 56.03, before even considering whether Chapter 39 covered the goods in issue. In refusing or in neglecting to do so, the argument goes, the Tribunal overlooked a crucial analytical step prescribed by Note 1 to Chapter 39. [42] This second issue requires the Court to determine whether Note 1 to Chapter 39 entails that the goods’ constituent material must be assessed in light of Section XI before turning to Chapter 39. In other words, the issue is whether the logic and structure of the Tariff Schedule require that a constituent material that combines textiles and plastics be assessed in a specific order. If they do, then it is an error of law not to assess that material in that order. This, again, is a question of law reviewable on a standard of correctness.", - "current_to": "2021-08-05", + "text": "The appellant sought and was granted leave to appeal to this Court. He alleged that the Federal Court had erred in the following respects: (a)in deciding that forced sterilization was not persecution as contemplated in the definition of Convention refugee; (b)in deciding that the appellant did not face persecution on the basis of \"political opinion\"; (c)in deciding that the appellant did not fall within a \"particular group\" because his affiliation with the social group was based not on what he was, but what he did; (d)by making unnecessary and improper findings of fact and credibility in deciding whether the appellant faced a reasonable chance of persecution by sterilization; and (e) in departing from its recent decision in Cheung, which held that a person who faced sterilization for breach of China's one-child policy was a member of a particular social group.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-11", + "id": "scc-1299-26", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 28–29", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 41", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Thus in Impex, the issue was not that the CITT allegedly erred in weighing certain factors against each other, or in unreasonably exercising a discretionary power conferred to it. Instead, this Court concluded that the CITT’s reasoning evidenced a misapprehension of the requirements of the tariff schedule—in other words, of the applicable law. Had this Court not intervened, the proper functioning of the legal rule—the interplay of the different sections of the tariff schedule involved—would have been undermined. The appellant successfully demonstrated that the CITT’s tariff classification decision on the merits raised an extricable question of law, reviewable on a section 68 appeal.\n\nHowever, in this case, no question of law was properly raised. A question of law is defined by its substance, not its form: see Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 49–50 [Emerson Milling]. In substance, this appeal is not about whether the CITT must have regard to WCO Classification Opinions, as that question is settled: see Best Buy (FCA 2019). Section 11 of the Customs Tariff requires the CITT have regard to WCO Classification Opinions when determining a tariff classification: see also Best Buy (FCA 2019).", - "current_to": "2021-08-05", + "text": "In the Court of Appeal, counsel for the respondent the Minister of Employment and Immigration had contested all the substantive legal grounds advanced by the appellant in the present case. In the appeal before this Court, however, counsel abandoned most of those positions. Thus he accepted paragraph (a) that forced sterilization constituted persecution, which he qualified as \"an extreme violation of the right to security of the person\", and as such \"an extreme violation of his human rights\". He further accepted on the basis of instructions from the Minister and this Court's decision in Ward, supra, that the appellant could be a member of a particularized group, and that association with such a group is not limited to some sort of conscious affiliation in the sense of an awareness of membership. In short, counsel does not appear to differ from the appellant as regards the definition of a particular group. Far from disagreeing with the appellant, in common with all the interveners, he encouraged the Court to clarify these issues. Unlike his position in the Court of Appeal, his argument before our Court was that there was no evidence in the present case upon which the Board could conclude that the appellant was a member of a particular group or alternatively that it was unsafe for a court of appeal to decide the matter, in which case it should be referred back to the Board. I add that counsel took the view that the Court of Appeal did not err in holding, on the evidence, that the appellant did not face persecution by reason of political opinion. I shall deal with all these issues. Analysis The Factual Issue", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-12", + "id": "scc-1299-27", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 30–31", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 42", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "What having proper regard entails is also settled. In its earlier decision in this matter, this Court, in remitting the matter to the CITT, summarized what this provision requires, at paragraph 4: The phrase “regard shall be had” under section 11 of the Customs Tariff entails that, while not binding, opinions of the WCO must “at least be considered” in determining the classification of goods imported into Canada (Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 at para. 8, [2016] 2 S.C.R. 80 [Igloo Vikski]). Similarly, this Court has examined the definition of “regard” in the context of section 11 of the Customs Tariff, and found that it means “to consider, heed, take into account, pay attention to, or take notice of” (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131 at para. 13, [2004] F.C.J. No. 615 [Suzuki]). Having “regard” further entails that the Tribunal should respect WCO opinions unless there is “sound reason” to do otherwise (Suzuki at para. 13). The Tribunal may ultimately disagree with the Opinions but it must consider them and provide a sound reason as to why it chose not to follow them.\n\nI would reiterate that, generally, the CITT should respect and follow WCO Classification Opinions. This means that the CITT should seek to, if possible, make tariff classifications that are in harmony with WCO Classification Opinions, rather than in opposition to them.", - "current_to": "2021-08-05", + "text": "Let me state at the outset that the respondent Minister was, in my view, correct in adopting the position he took in relation to the substantive legal issues set forth in the preceding paragraph, and I shall, as all parties requested, attempt to clarify these issues later. Before doing so, however, it is first necessary to consider the respondent's contention that there was no evidence upon which the Board could conclude that the appellant was a member of a particular group. I say immediately that I cannot accept this contention. Rather, I agree with the alternative position of both parties that it would be unsafe for a court of appeal to decide the matter and would remit the matter back to the Board. The Board, it will be remembered, dismissed the appellant's allegation of a fear of persecution by being forced to undergo sterilization on the legal ground that it did not find sterilization to be a form of persecution for Convention reasons. It made no factual finding for or against the appellant's facing a reasonable chance of sterilization. That, coupled with the fact that in the words of the members of the majority of the Court of Appeal, the evidence on a number of crucial issues is \"equivocal\" or \"ambiguous\", in itself, justifies ordering a new hearing before the Board, the members of which have the relevant experience and training to assess such matters. I will in the course of these reasons have occasion to refer to some instances of these factual ambiguities about which, removed as we are, my colleague Justice Major and I would tend to take divergent views.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-13", + "id": "scc-1299-28", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 32–33", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 43–44", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "However, where the CITT is of the view that such a harmonious classification is not possible, the CITT is not bound to follow the WCO Classification Opinions: see Best Buy (FCA 2019) at para 4; (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131, 319 N.R. 299 at paras. 14–17 [Suzuki]. The language of section 11 makes the WCO Explanatory Notes and Classification Opinions factors that must be weighed in the tariff classification process, not binding criteria. It must balance the WCO Classification Opinions and Explanatory Notes against any other factors it considers relevant. For example, it might weigh WCO Classification Opinions against apparently contradictory expert evidence: see e.g. Suzuki at para. 17. The appropriate weight to place on a WCO Classification Opinion will vary depending on the specific facts of the case and, most importantly, the characteristics of the goods in issue as compared to those covered by relevant Classification Opinions.\n\nAs a matter of law, the CITT is entitled to classify a product contrary to a WCO Classification Opinion when it has “sound reason” to do so: Best Buy (FCA 2019) at para. 4; Suzuki at para. 14. Whether it has sound reason in any specific case is unlikely to be a question of law but instead, as is the case here, one that can only be answered with reference to a particular set of facts. In other words, it will generally be a question of mixed fact and law.", - "current_to": "2021-08-05", + "text": "Since I have determined that the case should be remitted to the Board, I would ordinarily prefer not to comment further on the facts. However, since my colleague has decided that the appeal should be dismissed on a factual basis, I find it necessary to give my perspective on the facts. In doing so, however, I am cognizant that this Court is a court of law, not facts. Accordingly, as triers of fact, it is incumbent on the Board, and not this Court, to find whether or not the appellant was in fact a refugee uninhibited by any views I may have formed on the matter.\n\nIn undertaking a factual examination, it seems to me, one cannot ignore the contextual considerations arising out of the inherent obstacles that attend refugee hearings. In elucidating what I have in mind, I find it necessary to consider both the purpose of a refugee hearing and the inherent obstacles that attend this particular inquiry. The challenges of an immigration hearing were well summarized in a recent article by Michael Valpy (\"The suspicion of a gelded refugee process\", Globe and Mail (Toronto), March 7, 1995, at p. A2), who remarked: A refugee hearing is probably one of the most difficult judicial or quasi‑judicial events existing in Canada. Its purpose is to examine someone from a different culture, speaking a different language, from a country that lies perhaps thousands of kilometres away. Its objective is to determine not so much what has happened but what will happen if that person is returned to where he or she came from. [Emphasis in original.]", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-14", + "id": "scc-1299-29", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 34–35", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 45", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Nevertheless, Canada argues that the CITT erred in law by taking into account WCO internal processes as part of its assessment of the WCO opinions. The CITT did indeed cite portions from its decision in Mattel Canada Inc., 2019 CanLII 110865 (CA CITT), 2019 CarswellNat 14487 (WL Can), that describes how the WCO Classification Opinions are created: Best Buy (CITT 2019) at para. 9. However, in my view, it is open to the CITT to consider, in having “regard” to WCO Classification Opinions, how or why those opinions were produced. For example, it might be appropriate for the CITT to take notice of how goods reviewed by the WCO for a Classification Opinion came before the WCO, so that the CITT can assess whether the goods it is classifying are sufficiently similar to those covered by the WCO Classification Opinion. As the CITT noted, the Classification Opinions themselves are short, technical descriptions of products, and without further context—such as the background leading to publication of a specific Classification Opinion—the CITT might not be able to properly have “regard” to an opinion. Indeed, I am reticent to read into section 11 of the Customs Tariff strict limits on what the CITT can consider in reaching a tariff classification. In my view, it is important that this specialized tribunal be able to consider the disputes that come before it in context, which might include taking notice of the WCO’s deliberation processes.\n\nIn sum, Canada has failed to convince me that the CITT, by taking into account the deliberative process the WCO Committee used to create the Classification Opinions, made an error of law in its tariff classification decision.", - "current_to": "2021-08-05", + "text": "A reviewing court must, in assessing a Board's factual decision, attempt to put itself in its position. This can pose serious difficulties where the Board has made no finding on a critical issue but has simply disposed of the matter on the basis of a legal finding. This difficulty is increased because of difficulties that arose in the process of translation. Possibilities of distorted renderings of the evidence always exist, and this at times makes it difficult to understand when reduced to writing, a factor that is not absent in this case. Moreover, at a critical point in the testimony ‑‑ when the appellant responded to a question concerning his disobeying the Chinese one-child policy ‑‑, the Presiding Member of the Refugee Board detected that the appellant had responded in a more comprehensive manner than the interpreter. The appellant was then told that he would have to ensure that his sentences were short enough that the interpreter would be able to translate fully. Whether or not vital information was lost through imprecise or incomplete translation of the appellant's testimony that would be relevant in determining factual issues never considered by the Board is unknown. Unfortunately, the Board did not direct the Refugee Hearing Officer to cross‑examine the appellant, a measure that might well have enhanced the evidentiary foundations of this case.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-15", + "id": "scc-1299-30", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 36", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 46", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "This Court has, in the past, reviewed CITT decisions for issues of mixed fact and law. For example, in HBC Imports (Zellers Inc.) v. Canada (Border Services Agency), 2013 FCA 167, 446 N.R. 352 [HBC Imports], this Court reviewed, and upheld, the reasonableness of the CITT’s classification of a type of toboggan. In framing the issue before it, this Court noted: [4] The question of whether the Astra Sled should be classified under heading 95.03 requires an interpretation of the expression “other toys” as used in this heading and the application of this interpretation to the Astra Sled. This is a question of mixed fact and law which requires an interpretation of the Tribunal’s own statute. The standard of review is reasonableness, which means that deference is to be given to the Tribunal (Canadian Tire Corp. Ltd. v. President of the Canada Border Services Agency, 2011 FCA 242, at paragraph 4; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654).", - "current_to": "2021-08-05", + "text": "These considerations reinforce my view that this Court should not simply disallow the appellant's Convention refugee claim on the basis that he failed to establish that he had an objectively well‑founded fear of persecution in the form of sterilization. Instead, as I noted, I believe the appellant is entitled to have his claim reheard before a Refugee Board in accordance with the guidelines of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, the \"UNHCR Handbook\". As I noted in Ward, at pp. 713-14, while not formally binding upon signatory states such as Canada, the UNHCR Handbook has been formed from the cumulative knowledge available concerning the refugee admission procedures and criteria of signatory states. This much‑cited guide has been endorsed by the Executive Committee of the UNHCR, including Canada, and has been relied upon for guidance by the courts of signatory nations. Accordingly, the UNHCR Handbook must be treated as a highly relevant authority in considering refugee admission practices. This, of course, applies not only to the Board but also to a reviewing court.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-16", + "id": "scc-1299-31", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 37–38", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 47", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "While other decisions are not so explicit, in many cases this Court has effectively reviewed the CITT’s decision on the merits, assessing the reasonableness of its application of the law to the facts before it, without identifying an extricable legal principle at issue: see e.g. Canada (Attorney General) v. RBP Imports Inc., 2018 FCA 167 at paras. 3–5 [RBP Imports]; Containerwest Manufacturing Ltd. v. Canada (Border Services Agency), 2016 FCA 110 at para. 12 [Containerwest Manufacturing Ltd.]; Igloo Vikski (FCA) at para. 2. In these decisions, this Court did not distinguish between questions of fact, of law and of mixed fact and law, but instead reviewed the CITT’s decision on a tariff classification for its reasonableness on the whole.\n\nHowever, these decisions came before the Supreme Court of Canada’s decision in Vavilov, in which it noted the following, at paragraph 8: […] While the application of the reasonableness standard is grounded, in part, in the necessity of avoiding “undue interference” in the face of the legislature’s intention to leave certain questions with administrative bodies rather than with the courts (see Dunsmuir, at para. 27), that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.", - "current_to": "2021-08-05", + "text": "Under the UNHCR Handbook heading \"Establishing the facts\" the following critical paragraphs appear. They need to be read as a whole but I have emphasized some parts to give an immediate flavour of their content. 196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. 197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant. . . . 201.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-17", + "id": "scc-1299-32", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 39–40", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 47", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "In Vavilov, the Supreme Court of Canada reiterated that respect for legislative intent is the “polar star” of judicial review: at para. 33, citing C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 149. It also held that lower courts should no longer effectively ignore the language of statutory appeal mechanisms and treat appeals launched under them as, essentially, applications for judicial review: Vavilov at para. 45. Instead, courts are now required “to give effect to the legislature’s institutional design choices to delegate authority through statute”: Vavilov at para. 36.\n\nIn my view, the Supreme Court’s dicta in Vavilov provides sufficient basis for this Court to refocus its approach in dealing with statutory appeals under the Customs Act in order to more accurately reflect Parliament’s intent. In its post-Vavilov decisions on appeals under the Customs Act, this Court has not had to decide the issue of whether it lacks jurisdiction to review CITT decisions for errors falling outside the apparent scope of the section 68 statutory appeal, as these cases turned on questions of law: Neptune at para. 18; Impex at para. 40. This case, in which Canada has, in my view, failed to identify an extricable legal issue, but nonetheless also challenges the reasonableness of the CITT’s classification decision on the merits, requires this Court to first decide whether it has jurisdiction to conduct such a review.", - "current_to": "2021-08-05", + "text": "Very frequently the fact‑finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant's experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be \"the last straw\"; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear \"well‑founded\".... 202. Since the examiner's conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an \"undeserving case\". . . . 203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to \"prove\" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. [Emphasis added.] China's One-Child Policy", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-18", + "id": "scc-1299-33", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 41", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 48", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "At first blush, the language of the Customs Act would seem to preclude this Court from reviewing CITT decisions via any procedure other than the statutory appeal provided in that Act. As the statutory appeal is only available on questions of law, this Court would appear to lack jurisdiction to review CITT decisions for any errors other than purely legal ones. The relevant sections of the legislation read as follows: Appeal to the Canadian International Trade Tribunal Appel devant le Tribunal canadien du commerce extérieur 67 (1) A person aggrieved by a decision of the President made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the President and the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given. 67 (1) Toute personne qui s’estime lésée par une décision du président rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel auprès du président et du Tribunal dans les quatre-vingt-dix jours suivant la notification de l’avis de décision. […] […] Judicial review Recours judiciaire (3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.", - "current_to": "2021-08-05", + "text": "While the state of affairs existing in certain countries from which a refugee seeks asylum may well be entirely unknown to most Canadians, the Refugee Board is in a different position, given its constant concern with such matters. That noted, the Refugee Board must be conceded a reasonable amount of time to familiarize itself with the latest international developments causing refugees to flee to countries such as Canada which have accepted the responsibility of harbouring persecuted persons. Such a highly publicized matter as China's population policy, which has been the subject of much attention in human rights and immigration law circles as well in the popular media since its inception in 1979, can be said to fall well within the UNHCR Handbook category of \"generally known facts\" (see paragraph 204 of the UNHCR Handbook, supra).", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-19", + "id": "scc-1299-34", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 41", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 49", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "(3) Le Tribunal canadien du commerce extérieur peut statuer sur l’appel prévu au paragraphe (1), selon la nature de l’espèce, par ordonnance, constatation ou déclaration, celles-ci n’étant susceptibles de recours, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues à l’article 68. […] […] Appeal to Federal Court Recours devant la Cour d’appel fédérale 68 (1) Any of the parties to an appeal under section 67, namely, 68 (1) La décision sur l’appel prévu à l’article 67 est, dans les quatre-vingt-dix jours suivant la date où elle est rendue, susceptible de recours devant la Cour d’appel fédérale sur tout point de droit, de la part de toute partie à l’appel, à savoir : (a) the person who appealed, a) l’appelant; (b) the President, or b) le président; (c) any person who entered an appearance in accordance with subsection 67(2), may, within ninety days after the date a decision is made under section 67, appeal therefrom to the Federal Court of Appeal on any question of law. c) quiconque a remis l’acte de comparution visé au paragraphe 67(2). Disposition of appeal Issue du recours (2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing. (2) La Cour d’appel fédérale peut statuer sur le recours, selon la nature de l’espèce, par ordonnance ou constatation, ou renvoyer l’affaire au Tribunal canadien du commerce extérieur pour une nouvelle audience. [Emphasis added] [Nos soulignés]", - "current_to": "2021-08-05", + "text": "Canadian refugee boards have considered refugee claimants from China alleging fear of persecution in the form of sterilization dozens of times in the last five years alone; see infra. Indeed, during that period there have been more than 20 refugee claimants who alleged forced sterilization or forced abortion from Guangzhou City alone, the home city of the appellants in both the present case and in Cheung. I state in passing that while there have been many Chinese claimants alleging persecution similar to that of the appellant, there has been, by no measure, a deluge of refugee claimants. As early as 1989 a Refugee Board accepted the testimony of a refugee claimant alleging sterilization as a form of persecution; see H. (W.I.) (Re), [1989] C.R.D.D. No. 15 (No. V89‑00501). There is no evidence that following this decision, for instance, Canada's ability to fulfil its Convention refugee admittance obligations was in any way compromised. Rather, over the last five years, Canada has continued to grant Convention refugee status to approximately 70 percent of all claimants, or 15,224 persons in 1994: Immigration and Refugee Board, News Release, March 14, 1995. Only 314 of those claimants in 1994 were from China and, of course, many of these claimed Convention refugee status for reasons other than coerced sterilization.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-20", + "id": "scc-1299-35", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 42–43", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 50", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Read together, the plain and ordinary meaning of the provisions indicate Parliament’s intent to limit judicial review of CITT decisions to statutory appeals on questions of law: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27. Subsection 67(3) purports to limit the ability of a court to interfere with a CITT decision except via the statutory appeal mechanism provided for in section 68. Subsection 68(1) only allows for appeal on questions of law.\n\nThis meaning is supported by the legislative context. The Customs Act provides for de novo appeal before the CITT of a CBSA tariff classification decision. Prior to this appeal, the CBSA conducts two levels of internal review: Customs Act, ss. 59–60. By the time a tariff classification matter reaches this Court, any contested factual issues have thus already been subject to multiple levels of review. Similarly, the application of the law to the facts—the tariff classification of the product—has also first been decided by the CBSA, reviewed internally, and then reviewed de novo by the CITT. What the statutory scheme contemplates for this Court to review are contested legal issues, and not factual ones.", - "current_to": "2021-08-05", + "text": "It is a generally known fact that nations subject to the same Convention refugee obligations as Canada, such as the United States and Australia, have also been concerned with Chinese refugee applicants recounting stories of alleged persecution remarkably similar to that of the present appellant: for representative examples see Guo Chun Di v. Carroll, 842 F.Supp. 858 (E.D.Va. 1994); Xin‑Chang Zhang v. Slattery, 859 F.Supp. 708 (S.D.N.Y. 1994), and Matter of Chang, Int. Dec. 3107 (BIA1989). Academic authorities have also extensively canvassed the topic of refugees from China alleging persecution in the form of coerced sterilization; see, among other sources, Stanford M. Lin, \"China's One‑Couple, One-Child Family Planning Policy as Grounds for Granting Asylum ‑‑ Xin‑Chang Zhang v. Slattery, No. 94 Civ. 2119 (S.D.N.Y. Aug. 5, 1994)\" (1995), 36 Harv. Int'l L.J. 231; Tara A. Moriarty, \"Guo v. Carroll: Political Opinion, Persecution, and Coercive Population Control in the People's Republic of China\", 8 Geo. Immigr. L.J. 469; Daniel S. Gewirtz, \"Toward a Quality Population: China's Eugenic Sterilization of the Mentally Retarded\" (1994), 15 N.Y.L. Sch. J. Int'l & Comp. L. 139; Lisa B. Gregory, \"Examining the Economic Component of China's One-Child Family Policy Under International Law: Your Money or Your Life\" (1992), 6 J. Chinese L. 45, and E. Tobin Shiers, \"Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers\" (1990), 30 Va. J. Int'l L. 1007.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-21", + "id": "scc-1299-36", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 44", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 51", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Further support for this interpretation can be found by comparing the appeal procedure provided for in the Customs Act to similar procedures for review of other types of CITT decisions. The CITT is a quasi-judicial tribunal created by the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.). It decides a wide variety of matters brought before it pursuant to several different statutory authorities. Appeals to the CITT from certain CBSA decisions are available, for example, under subsection 61(1) of the Special Import Measures Act, R.S.C. 1985, c. S-15 [SIMA]. Subsection 61(3) makes these decisions final and conclusive except where subject to appeal, and subsection 62(1) makes appeals to this Court available on questions of law. Notably absent in the SIMA is the language used in the Customs Act to expressly eliminate judicial review of all other CITT decisions made under the SIMA. Indeed, unlike the Customs Act, the SIMA explicitly provides for launching an application for judicial review of certain decisions on grounds other than provided for in the statutory appeal mechanism. For example, section 76 of the SIMA provides: Application for judicial review Contrôle judiciaire 76 Subject to subsection 61(3) and Part I.1 or II, an application for judicial review of an order or finding of the Tribunal under this Act may be made to the Federal Court of Appeal on any of the grounds set out in subsection 18.1(4) of the Federal Courts Act. 76 Sous réserve du paragraphe 61(3) et des parties I.1 et II, les ordonnances ou conclusions du Tribunal prévues à la présente loi sont sujettes au contrôle judiciaire de la Cour d’appel fédérale pour l’un des motifs prévus au paragraphe 18.1(4) de la Loi sur les Cours fédérales.", - "current_to": "2021-08-05", + "text": "The U.S. Department of State's Country Reports on Human Rights Practices for 1993, February 1994 (\"Country Report\") summarizes what an examination of the mentioned cases and articles indicates. Earlier, largely unchanged versions of this oft‑cited annual report, were available at the time the Board rendered judgment. The Country Report states at p. 609: China's population has roughly doubled in the past 40 years to nearly 1.2 billion people, over a fifth of all humanity. In the 1970's and 1980's China adopted a comprehensive and highly intrusive family planning policy. This policy most heavily affects Han Chinese in urban areas. For urban couples, obtaining permission, usually issued by their work units, to have a second child is very difficult. Numerous exceptions are allowed for the 70 percent of Han who live in rural areas. Ethnic minorities are subject to less stringent population controls. Enforcement of the family planning policy is inconsistent, varying widely from place to place and year to year. The population control policy relies on education, propaganda, and economic incentives, as well as more coercive measures, including psychological pressure and economic penalties. Rewards for couples who adhere to the policy include monthly stipends and preferential medical and educational benefits. Disciplinary measures against those who violate the policy include stiff fines, withholding of social services, demotion, and other administrative punishments, including, in some instances, loss of employment. Unpaid fines have sometimes resulted in confiscation or destruction of personal property. Because penalties for excess births may be levied against local officials and the mothers' work units, many persons are affected, providing multiple sources of pressure.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-22", + "id": "scc-1299-37", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 45–46", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 51–52", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "The availability of judicial review is also dealt with at section 96.1 of the SIMA, which enumerates at length the types of CITT decisions and issues subject to judicial review, as opposed to being reviewable under that legislation’s statutory appeal mechanism.\n\nAs Canada points out, the explicit reference in the SIMA to the availability of judicial review of CITT decisions made under that Act can be contrasted with Parliament’s explicit statement that CITT decisions made under subsection 67(3) of the Customs Act are “not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.” In my view, the comparison further supports the plain and ordinary interpretation of the meaning of the Customs Act, which is that judicial review outside the statutory appeal mechanism, and thus for questions of mixed fact and law, is unavailable. If Parliament’s institutional design choices are to be respected, factual issues and issues of mixed fact and law for which no legal question can be extracted must not be subject to review by this Court.", - "current_to": "2021-08-05", + "text": "Physical compulsion to submit to abortion or sterilization is not authorized, but Chinese officials acknowledge privately that there are still instances of forced abortions and sterilizations in remote, rural areas. Officials maintain that, when discovered, abuses by local officials result in discipline or retraining. They admit, however, that stronger punishment is rare and have not documented any cases where punishment has occurred.\n\nThe Country Report, at p. 605, specifically discusses \"Political and Other Extrajudicial Killing\" and \"Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment\". The report finds that, in 1992 for instance, at least 12 people died as a result of torture while in Chinese police custody. An example is offered of a farmer who was beaten to death by local officials after he protested the level of taxes and fees. Credible reports are also noted of both male and female detainees being punished with the use of cattle prods, electrodes, beatings, and shackles. According to the Country Report, some persons involved in both the 1989 Tianamen Square uprising and certain activists who wish to free Tibet from Chinese occupation continue to be detained as political prisoners. The number of such persons is impossible to determine but, by some estimates, it may be in the thousands. In sum, the Country Report offers a portrait of a nation with, at best, a checkered human rights record.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-23", + "id": "scc-1299-38", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 47–48", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 53–54", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "This conclusion runs contrary to the position taken on this issue by both parties. Canada argues, and Best Buy agrees, that paragraph 28(1)(e) of the Federal Courts Act provides this Court with broad jurisdiction to review CITT decisions for matters not subject to the statutory appeal mechanism. In other words, all matters not captured by the term “question of law”. In support of this proposition, Canada argues that the “rule of law” requires judicial review be available to guard against unreasonable CITT rulings on matters of fact or mixed fact and law. As a subsidiary argument, Canada points to past jurisprudence of this Court recognizing the possibility of judicial review of CITT decisions, and indeed of other tribunals subject to similar limited scope appeal clauses, for matters falling outside the scope of the statutory appeal.\n\nI have already described why I view this Court’s past practice of reviewing these matters on a reasonableness standard, within the procedural vehicle of a section 68 appeal, as of limited import in determining how it should conduct statutory appeals under the Customs Act going forward. Vavilov implemented “a holistic revision of the framework for determining the applicable standard of review”: at para. 143. The Supreme Court explicitly noted that past cases dealing with “the effect of statutory appeal mechanisms […] will necessarily have less precedential force” after Vavilov: at para. 143. In my view, the past cases in which mixed questions were reviewed, under section 68, on a reasonableness standard, effectively ignored subsection 67(3) and Parliament’s institutional design choice. Vavilov makes clear that this past practice should no longer be sustained going forward. Furthermore, in truth the jurisprudence leans both ways.", - "current_to": "2021-08-05", + "text": "I should add that other countries that have assumed Convention refugee obligations are also confronting Chinese refugee claims alleging coerced sterilization similar to that of the present appellant. Australia is one; see for example the recent decision of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v. Respondent A (1995), 130 A.L.R. 48, to which reference is made later in these reasons. Interestingly, the husband and wife in that case came, once again, from the environs of Guangzhou City. Benefit of the Doubt\n\nThe appellant's account of harassment and threatened persecution at the hands of PSB officials can be compared with the generally known factual picture that emerges upon an examination of all available evidence from the mentioned sources. Using the guidelines provided by UNHCR Handbook for establishing the facts of a given case (see especially paragraph 203), it can be determined whether a Convention refugee is entitled to any benefit of the doubt regarding his story.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-24", + "id": "scc-1299-39", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 49–50", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 55", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted above, in some cases this Court has, either explicitly or implicitly, reviewed the CITT’s application of the law to the facts: see e.g. HBC Imports at para. 4; RBP Imports at paras. 3–5; Containerwest Manufacturing at para. 12; Igloo Vikski (FCA) at para. 2.\n\nHowever, in others, this Court limited its inquiry to whether a reviewable error of law occurred, and declined to review the CITT’s findings of fact or application of law to those facts. In Star Choice Television Network Inc. v. Canada (Commissioner of Customs and Revenue), 2004 FCA 153, 2004 CarswellNat 1004 (WL Can) at para. 9, Strayer J.A. noted that questions of law were “the only matter properly in issue on this appeal”, before concluding the CITT had not made a reviewable error of law. In Deputy Canada (Minister of National Revenue) v. Yves Ponroy Canada, 2000 CanLII 15801 (FCA), 25 Admin L.R. (3d) 101 at para. 36, Sharlow J.A. wrote that “[u]nder subsection 67(3) and subsection 68(1) of the Customs Act, customs tariff classification decisions of the CITT are not subject to judicial review and are subject to appeal to this Court only on questions of law”, before concluding that the CITT had not made a reviewable error of law. And indeed, in one of its handful of decisions on a section 68 appeal, the Supreme Court noted in obiter that, by virtue of subsection 67(3) of the Customs Act, “CITT findings of fact are immune from appellate review”: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100 at para. 26.", - "current_to": "2021-08-05", + "text": "In this case, the appellant's description of events very closely conforms with what is known now, and what was readily available to the Refugee Board at the time of his hearing. The appellant is a member of the Han Chinese ethnic group. He is from an urban area, Guangzhou City, whose local authorities practise population control coercion in the form of forced sterilization as confirmed by numerous other refugee claimants. The appellant claims that he was subject to psychological pressure and threatened with disciplinary measures including stiff fines and coerced sterilization, not necessarily by the government itself, but certainly by local officials of the PSB and neighbourhood committee members. He testified that his wife has been prevented from acquiring another job. His wife's letters stated that personal property had been confiscated and that their second child's registration within his family was threatened, a serious penalty in a country in which \"unauthorized\" children lose their right to free education and health care subsidies; see, among other sources, Gregory, supra, p. 52. He further testified that if he were returned to China, disciplinary measures could include imprisonment, denial of access to employment, and possibly murder. In effect, his testimony can be seen to reflect what the Country Report cites as customary; his decision to have a second child had the effect of providing multiple sources of pressure from both PSB officers and neighbourhood committee members.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-25", + "id": "scc-1299-40", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 51–53", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 56", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Thus in my view, past jurisprudence does not provide a persuasive argument as to why the clear meaning of the Customs Act should be disregarded and judicial review of CITT decisions be permitted outside of the section 68 statutory appeal mechanism. Given that that mechanism is restricted in scope to matters of law, I am of the view that this Court may only intervene in a CITT decision if it discloses a reviewable error of law.\n\nDoes this conclusion offend the “rule of law”? Canada argues that it is the constitutional role of the courts to supervise the executive branch of government, and that in order to be fulfilled, this role requires full review of administrative decisions on all matters. In other words, reasonableness review of administrative decisions is constitutionally entrenched, and cannot be limited by legislative act.\n\nIt is true that the Supreme Court, in Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 [Crevier], held that the legislature cannot completely oust judicial review via use of a privative clause. It is worth reviewing the facts of that oft-cited case, and briefly unpacking the Supreme Court’s holding.", - "current_to": "2021-08-05", + "text": "The appellant's account of events so closely mirrors the known facts concerning the implementation of China's population policy that, given the absence of any negative finding as to the credibility of the appellant or of his evidence, I think it clear that his quite plausible account is entitled to the benefit of any doubt that may exist. With respect, I see no merit in the approach taken by some members of the court below and by my colleague Major J. to seize upon sections of the appellant's testimony in isolation. Indeed, I find such a technique antithetical to the guidelines of the UNHCR Handbook (see paragraph 201).", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-26", + "id": "scc-1299-41", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 54", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 57", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Crevier dealt with the question of whether a provincial legislature can entirely eliminate judicial review of an administrative tribunal empowered to make findings of fact and rule on matters of law. The administrative scheme at issue was set up under Québec’s Professional Code, R.S.Q. 1977, c. C-26, which at the time granted the Professions Tribunal judicial powers to hear appeals of disciplinary decisions made by the different professional orders’ Disciplinary Committees. The Professions Tribunal was composed of judges of the Provincial Court, i.e. not judges appointed by the federal government under section 96 of what was then still the British North America Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91, since reprinted in R.S.C. 1985, Appendix II., No. 5. At the time, article 194 of the Professional Code purported to completely eliminate recourse to the Superior Courts for review of Professions Tribunal decisions. It read: 194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities. 194. Aucun des recours extraordinaires prévus aux articles 834 à 850 du Code de procédure civile ne peut être exercé ni aucune injonction accordée contre les personnes visées à l’article 193 agissant en leur qualité officielle.", - "current_to": "2021-08-05", + "text": "If such an unremitting approach were regularly applied to the brief testimony of refugee claimants who generally receive and answer questions through the aid of an interpreter, it can be certain that Canada would annually admit very few refugees indeed. I recognize that, if it so chooses, the Government of Canada is quite capable of renouncing its voluntarily adopted obligations to grant asylum for Convention refugees claimants. Until such time, however, I believe that the UNHCR Handbook and s. 3(g) of the Immigration Act, which declares that it promotes Canada's domestic and international interests to recognize the need to fulfil its \"international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted\", must be followed. Given these explicit guidelines, I think it clear that Canada's relatively small yet nonetheless important refugee burden should not be thwarted by an unduly stringent application of exacting legal proof that fails to take account of the contextual obstacles customary to refugee hearings. I am mindful that the possibility of a flood of refugees may be a legitimate political concern, but it is not an appropriate legal consideration. To incorporate such concerns implicitly within the Convention refugee determination process, however well meaning, unduly distorts the judicial‑political relationship. To alter the focus of refugee law away from its paramount concern with basic human rights frustrates the possibility that foreign persecution may be eventually halted by international pressure.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-27", + "id": "scc-1299-42", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 55", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 57–58", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "The articles of the Code of Civil Procedure referred to dealt with applications for judicial review. The most relevant provision was article 846, which read: 846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases: 846. La Cour supérieure peut, à la demande d’une partie, évoquer avant jugement une affaire pendante devant un tribunal soumis à son pouvoir de surveillance ou de contrôle, ou reviser le jugement déjà rendu par tel tribunal: 1. when there is want or excess of jurisdiction;. 1. dans le cas de défaut ou d’excès de juridiction; 2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect; 2. lorsque le règlement sur lequel la poursuite a été formée ou le jugement rendu est nul ou sans effet; 3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done; 3. lorsque la procédure suivie est entachée de quelque irrégularité grave, et qu’il y a lieu de croire que justice n’a pas été, ou ne pourra pas être rendue; 4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice 4. lorsqu’il y a eu violation de la loi ou abus de pouvoir équivalant à fraude et de nature à entraîner une injustice flagrante. However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.", - "current_to": "2021-08-05", + "text": "To accept at the judicial level that fundamental human rights violations do not serve to grant Convention refugee status minimizes one of the principal incentives the international community has to denounce foreign persecution and attempt to affect change abroad: to avoid a flood of refugee claimants.\n\nViewing the appellant's evidence in the manner described by the UNHCR Handbook helps elucidate two further matters. The appellant testified that subsequent to his flight from China his wife had yet to be sterilized, although she too had been threatened with sterilization. I do not see that this fact can be used to make any fear of persecution the appellant may have had less legitimate. If anything, this evidence supports the appellant's apprehension that he was the true object of the PSB scrutiny. Furthermore, simply from a pragmatic standpoint, it may well be that the PSB and neighbourhood committee elected not to sterilize the appellant's wife, given that the law against a couple having more than one child could not be further violated when her husband was in exile in Canada.", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-28", + "id": "scc-1299-43", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 55–56", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 59–60", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", "division": "", - "text": "Toutefois, ce recours n’est ouvert, dans les cas prévus aux alinéas 2, 3 et 4 ci-dessus, que si, dans l’espèce, les jugements du tribunal saisi ne sont pas susceptibles d’appel. [Emphasis added, italics in original] [Nos soulignés]\n\nThe Supreme Court struck down article 194 on the basis that it had the effect of constituting the Professions Tribunal a section 96 court. Chief Justice Laskin, writing for the Court, held the following: It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. (Crevier at pp. 236–37 [Emphasis added])", - "current_to": "2021-08-05", + "text": "The evidence that the appellant's family was able to renew his driver's licence with the PSB some months after he fled the country may be viewed in a similar light. With the appellant out of the country, to deny the appellant a driver's licence would serve no purpose; he would not be driving in China in any event. Assuming the authorities did not know the claimant had left the country, the granting of the licence would not entirely dissipate the fear, whether viewed objectively or subjectively, that the claimant would ultimately be sterilized. At best, I think it is a factor that can only be given limited weight, given the speculation that seems necessary in order to ascertain any ultimate significance to it. Further, it must be remembered that it must in the end be considered with the whole of the evidence, keeping in mind that in such consideration the appellant must be given the benefit of the doubt.\n\nIn sum, I do not accept that this appeal can be dismissed as easily as suggested by my colleague. As already noted, no conclusion was drawn, in favour or against the appellant's facing a reasonable chance of sterilization. However, the appellant may be entitled to the benefit of the doubt as his personal account is widely supported by, and is consistent with, what is known of the current implementation of the population policy within his region of China. What remains to be determined, then, is whether the implementation of that policy, through sterilization by local officials, can constitute a well-founded fear of persecution in light of this Court's decision in Ward and that of the Federal Court of Appeal in Cheung, supra. State Complicity and Persecution", + "current_to": "1995-10-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" }, { - "id": "fca-501244-29", + "id": "scc-1299-44", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 57–58", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 61–62", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "As was made clear in this Court's decision in Ward, the alleged persecution does not have to emanate from the state itself to trigger a Convention obligation. Serious human rights violations may well issue from non‑state actors if the state is incapable or unwilling to protect its nationals from abuse. A fortiori, this must apply to subordinate state authorities. The security of nationals is the essence of sovereignty and the most basic obligation a state owes its citizens.\n\nIn terms of the present appeal I am in agreement with the following statement, at p. 704, of Mahoney J.A. in the Court below: The evidence does not lead to the conclusion that the central government of China is unable to protect its citizens from the excesses of the local authorities. Rather, it indicates a central government which, by its passivity, is either tolerating or abetting the enforcement of the population control policy by a means which it officially disavows.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-45", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 63", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "This conclusion is, in my view, incontestable upon a reading of the mentioned international jurisprudence and academic authorities on the subject. As the Country Report, supra, makes clear, while local officials are rarely punished for abuses committed during the sterilization process, economic sanctions are levied against such officials when birth rates are too high. It is evident, then, that the Chinese government, if nothing else, creates a climate in which incentives for mistreatment are ripe. Accordingly, I find it neither necessary nor possible from the evidentiary record to determine the precise degree to which the Chinese government is involved in sanctioning the particular conduct of its own local officials. It will often be the case that a refugee claimant will not know with any certainty the operational structure of his or her persecutor when such actor is a government or organization. Indeed, it is quite conceivable that a refugee may only have a vague notion as to why he or she is being persecuted. In a situation like the present, it is enough that there is clear and convincing evidence that the government of China is not using its capabilities to protect persons in the position of the appellant.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-46", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 64", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "While the Federal Court of Appeal unanimously agreed that local authorities carried out sterilization procedures without the authority of the central government, there was some confusion as to whether the legitimacy of the population policy of the Chinese government was at issue. Desjardins J.A. noted that the legitimacy of the government policy itself had not been challenged and therefore remained proper. Since the legitimacy of the Chinese government's population control policy was not in question, she reasoned, at p. 724, that it could not \"be said that when a foreign government employs means that violate basic human rights, as known in Canada, so as to ensure the respect of a valid social objective, such means amount to `persecution' under the Convention\". Heald J.A., however, was of the view that the population policy of the Chinese government was well within the jurisdiction of the government given its concern with its population problem. He found that an analogy to criminal law was apt in terms of whether the appellant's actions could be considered a political opinion. He reasoned, at p. 695, that what occurred in this case was a \"breach of a law and reluctance to undergo the ensuing penalty\".", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-47", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 65", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "I should say that I do not in general consider it appropriate for courts to make implicit or explicit pronouncements on the validity of another nation's social policies. In the present case, the full extent of the Chinese population policy is unknown in this country and undue speculation as to its legitimacy serves no purpose. Whether the Chinese government decides to curb its population is an internal matter for that government to decide. Indeed, there are undoubtedly appropriate and acceptable means of achieving the objectives of its policy that are not in violation of basic human rights. However, when the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution will have been crossed. It is at this point that Canadian judicial bodies may pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status, assuming of course that the claimant's credibility is not in question and that his or her account conforms with generally known facts.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-48", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 66", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "I find further that questions as to whether the foreign policy is of general application, a focus of concern for the majority below, may not be crucial to an individual refugee determination. It is quite possible that a law or policy of general application may well be violative of basic human rights; the apparent policy of the former Khmer Rouge regime in Cambodia mentioned by the intervener, Canadian Council for Refugees, whereby people who wore eyeglasses were arrested, detained, and then executed, if of general application, would still be very much persecutory. I note, on the facts of the present case, that the evidence strongly supports a belief that the population policy has not been applied and enforced generally. Urban Han Chinese, with variations by region, appear to bear the brunt of the policy; see Country Report, supra. Non‑Han Chinese in rural areas, for instance, appear to be permitted to have as many as three or four children; see Gregory, supra, p. 53. The appellant of course is an urban Han Chinese from a region that has been the subject of many accounts of implementation of the population policy by forced sterilization.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-49", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 67", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Some mention of analogies between valid criminal law and the one child per couple policy is warranted. As I made clear in Ward, Parliament has codified a criminal law exemption in s. 19(1)(c) of the Immigration Act, the essence of which states that persons who have been convicted of an offence will not be granted Convention refugee status if the same offence, similarly committed in Canada, would constitute an offence in Canada punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed. It is true, as I explained in Ward, at p. 742, that the Act accords some flexibility to the Minister to permit entry to claimants with past criminal records. However, this is insufficient to permit the Act to be read as supporting the concern expressed by Desjardins J.A., at p. 724, that \"those who face capital punishment as a consequence of a breach of a valid and legitimate piece of legislation would automatically become refugees under the Convention\" (emphasis added). A plain reading of the relevant provisions of the Act simply does not support this apprehension. Indeed, by the reasoning of Desjardins J.A., which accords extensive deference to \"valid and legitimate\" legislation of foreign nations, it would seem that had the Chinese government designated death as the appropriate penalty for violation of the population policy, such conduct could not be seen as persecutory since it could be classified as mere resistance to the \"realization of valid state objectives\". Respectfully, I am unable to accept that approach.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-50", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 68", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Refugee boards and supervising appellate courts must take a cautious approach to the invocation of state authority arguments as Linden J.A. made clear in his judgment in Cheung. I endorse his finding, at p. 323, that: Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.), the Court held that even where there is a law of general application, that law may be applied in such a way as to be persecutory.... if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-51", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 69", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "This approach is, in my view, eminently sensible. It returns the focus of a refugee hearing to the essential question of whether the claimant's basic human rights are in fundamental jeopardy. This point was underscored in Ward where it was stated, at p. 733, that \"[u]nderlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination\". In that case, this Court endorsed an approach in which the concern of refugee law ought to be the denial of human dignity in any key way with the sustained or systemic denial of core human rights as the appropriate standard. The Court there noted, at pp. 733-34: This theme sets the boundaries for many of the elements of the definition of \"Convention refugee\". \"Persecution\", for example, undefined in the Convention, has been ascribed the meaning of \"sustained or systemic violation of basic human rights demonstrative of a failure of state protection\"; see Hathaway [The Law of Refugee Status (Toronto: 1991)], at pp. 104‑5. So too Goodwin‑Gill [The Refugee in International Law (Oxford: 1983)], at p. 38 observes that \"comprehensive analysis requires the general notion (of persecution) to be related to developments within the broad field of human rights\". This has recently been recognized by the Federal Court of Appeal in the Cheung case.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-52", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 70–71", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Both Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154, and Cheung were approved in Ward for developing tests making the consideration of basic human rights the appropriate focus of a refugee inquiry. It was noted that groups defined by a characteristic that is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights, were beyond Canada's obligation and responsibility. The essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way. This question must be asked of the present appellant's allegations.\n\nThese basic human rights are not to be considered from the subjective perspective of one country, as Desjardins J.A. suggests. By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries. This does not mean, however, that recourse to the municipal law of the admitting nation may not be made. For such municipal law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights. Accordingly, this Court's decision in Eve, supra, which concerned an application for the non‑therapeutic sterilization of a mentally incompetent adult by a parent, may be looked to for guidance.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-53", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 72", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Eve, at pp. 431 and 432, this Court affirmed that forced sterilization constitutes a \"grave intrusion on a person's rights\" and as an \"irreversible and serious intrusion on the basic rights of the individual\". Certainly this is true in this kind of context. Two of the justices below followed this reasoning, citing Eve directly, while the other acknowledged that he found this particular penalty abhorrent. In my opinion, the sanction of forced sterilization against the appellant in the present case would constitute a gross infringement of the security of the person and readily qualify as the type of fundamental violation of basic human rights that constitutes persecution as discussed in the mentioned authorities and the UNHCR Handbook.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-54", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 73", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "I note that Desjardins J.A. correctly found, on the strength of Eve, that forced sterilization constitutes a violation of a basic human right. However, she later decided, at p. 724, that, as the record was silent concerning the medical procedure to be followed, she \"must assume . . . that it is carried out through a normal procedure currently in use by those who voluntarily opt for this procedure elsewhere, including this country\". With respect, I do not agree. In sum, I think that whatever technique is employed, it is utterly beyond dispute that forced sterilization is in essence an inhuman and degrading treatment involving bodily mutilation, and constitutes the very type of fundamental violation of basic human rights that is the concern of refugee law. I fully endorse the remark of Linden J.A. in Cheung, at p. 324, that \"[t]here are a few practices that could be more intrusive and more brutal than forced sterilization\". I add that even if the issue were dependent on the method of sterilization adopted, my assumptions about its nature would be different from that adopted by Desjardins J.A. If the specific nature of the sterilization procedure had to be made, I would tend to the view that the procedure would be most unlike the consensual procedure that would occur in Canada, a highly industrialized society with some of the finest medical facilities and practitioners in the world. The appellant, instead, would be sterilized for punitive rather than therapeutic reasons, in a nation where sterilization abuses have already been documented, at the behest of persons angry at the appellant for depriving them of a bonus for low birth rates, and in facilities most unlikely to rival a Canadian hospital. Well-Founded Fear", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-55", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 74", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ward confirmed the approach of Heald J.A. in Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.), that a well-founded fear must be evaluated both subjectively and objectively. The UNHCR Handbook enunciates an identical approach. As to the former, the Board made no attempt in its written reasons to assess the evidence respecting the appellant's fear of persecution in the form of forced sterilization. It merely decided that it did not find sterilization to be a form of persecution, accepting it as a measure on the part of the Chinese government to implement a family planning policy.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-56", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 75", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Is there evidence on the record upon which this Court can find that the appellant exhibited a subjective fear of forced sterilization? The ambiguity of the evidence makes the determination of the appellant's subjective fear an intricate task. Adding to the obstacles preventing a rapid determination of the appellant's subjective fear is the evidence, apparent upon an examination of the written record, that in at least two instances, the appellant was unwilling to state or elaborate upon certain information, a phenomenon not at all uncommon to refugee claimants from other cultures. The UNHCR Handbook offers substantial guidance in this area: 46. The expressions \"fear of persecution\" or even \"persecution\" are usually foreign to a refugee's normal vocabulary. A refugee will indeed only rarely invoke \"fear of persecution\" in these terms, though it will often be implicit in his story. Again, while a refugee may have very definite opinions for which he has had to suffer, he may not, for psychological reasons, be able to describe his experiences and situation in political terms. . . . 198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis‑à‑vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case. [Emphasis added.] The appellant twice noticeably constrained his testimony in regard to the anger and abuse of the PSB directed at the appellant and his family for violating the birth control policy, stating that it \"would be very difficult for me to tell you in detail\" and that \"for me it's very hard to say out loud\".", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-57", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 75–76", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant's reluctance to speak at such a crucial stage of his testimony ‑‑ and the lack of intervention on the part of the Board, when faced with the appellant's hesitation, to invite him to articulate his experiences fully ‑‑ would, if one gives credence to the UNHCR Handbook, appear not uncommon in a refugee hearing.\n\nGiven the problems with the translation record, I see little merit in isolating portions of the appellant's responses in order to highlight possible prevarication. The appellant's testimony must, as the Handbook instructs us, be read in context in its entirety with some allowance for the translation errors that certainly occurred in the appellant's answers and quite possibly in the translation of the Board questions. Viewed in this light, the appellant's testimony does not seem to be particularly equivocal. I cite a portion of the transcript: QNow, you stated that you signed the confirmation that you would undergo sterilization. Why did you sign that confirmation? ABecause I felt if I did not sign, I cannot accommodate their request. They can come every day, from the morning to night. Then psychologically, we cannot take that, and also they can go one step ahead, terminate me from my job, and also terminate my parents'. If it has to come to such a stage, that means we would not be able to live, so we sign ‑‑ I signed this document so to pass this difficulty. QDid you ever intend to abide by their request for sterilization? AI feel that whether one would like to take a sterilization is his own choice. Even though I'm not going to have a third child, it would not [be] absolutely necessary for me to take a sterilization operation. So I had never thought of going to have this kind of cruel operation.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-58", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 77", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "On my reading, the appellant stated that he signed the sterilization consent to end the continued psychological harassment and threats to his employment and that of his parents ‑‑ a significant peril to persons from cultures in which elders are revered. He then attempted to negate any inference that he actually intended to abide by the request to have the operation by stating that such an operation should be a matter of individual choice, that the operation was unnecessary as he was not going to have a third child in any event, and that despite signing the sterilization confirmation agreement, he never in fact considered submitting to an operation that he considered to be cruel. I fail to see how this testimony can serve as evidence of equivocation on the part of the appellant.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-59", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 78", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "In terms of what the appellant stated would happen to him if returned to China, he listed a series of possible sanctions including arrest, unemployment, and even murder. Given the considerable testimony the appellant had already given concerning the mounting pressure upon him to submit to sterilization that resulted in his ensuing flight from China, it is not really surprising that he did not again mention that he could be sterilized if returned to that country. I note that he did mention other possible punishments, one of which at least, without deciding the matter at this point, would be a fundamental infringement of basic human rights on the facts of this case itself. Further it is not unreasonable that the appellant would mention punishments other than sterilization if returned as his jeopardy would have substantially altered. If returned, he would not only be seen as a pro‑democracy sympathiser and violator of the population policy as before; he would also be regarded as a fraud for having falsely given consent to submit to surgery as well as bearing the ignominious and quite possibly dangerous distinction ‑‑ given China's overall human rights record as noted in the Country Report ‑‑ of being a forcibly returned exile. Put another way, it is not unimaginable that a refugee claimant might flee a country in fear of one form of persecution, only to find him- or herself forcibly returned and await punishment for another form of persecution reflective of both the original persecution and the added fact that the claimant had attempted to escape.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-60", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 79–80", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The fact that coercive sterilization is principally used against women in China is no argument that the appellant's fear of persecution was not well-founded. Numerous cases have considered claims by male refugees alleging fear of persecution by means of coerced sterilization in China; these include Matter of Chang, supra, Respondent A, supra, Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995); Shu‑Hao Zhao v. Schiltgen, 1995 WL 165562 (N.D.Cal.); A. (W.R.) (Re), [1989] C.R.D.D. No. 98 (No. T89-00483); K. (H.H.) (Re), [1991] C.R.D.D. No. 484 (No. V90-01187), and X. (D.K.) (Re), [1989] C.R.D.D. No. 293 (No. T89-0031). Even when Convention refugee status was not granted, it was not on the basis that coerced sterilization only applies to female population policy violators. Indeed, neither the parties nor the interveners based any argument on the basis that the policy applied only to women. All academic authorities I have consulted accept the fact that the policy applies, and is enforced, against both sexes.\n\nUpon review of the appellant's evidence in it's entirety, I find the fact that the appellant did not specifically invoke the term \"fear of persecution\" or equivalent words to that effect to be of no particular import. The appellant recounted descriptions of continued harassments both at home and at his place of employment, interrogations of employees and customers, threats and verbal abuse towards himself and his family members, the feeling of being compelled to sign both a confession of pro‑democracy sympathies and a sterilization confirmation form. This testimony, together with his ensuing exodus from China, directs a finding that sufficient evidence exists to find that the appellant had an implicit well-founded fear of persecution.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-61", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 81", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "I do not at this stage propose to deal at length with the second step of the inquiry, whether there are objective grounds for the appellant to fear forced sterilization. In this case, the generally known facts that I have previously set forth clearly establish these objective grounds. Thus, I reject Major J.'s conclusion that the appellant failed to adduce any evidence with respect to the objective basis of his fear of forced sterilization. This, too, is an issue that should be considered by the Board. That being so, I propose to consider the enumerated grounds which comprise the essential grounds of contention in the court below. Membership in a Particular Social Group", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-62", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 82", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Ward, supra, I set forth general guidelines intended to assist in the determination of whether a given refugee claimant could be said to fall within a particular social group. At page 739, I stated: The meaning assigned to \"particular social group\" in the Act should take into account the general underlying themes of the defence of human rights and anti‑discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories: (1) groups defined by an innate or unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti‑discrimination influences, in that one's past is an immutable part of the person. [Emphasis added.]", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-63", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 83–84", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "As I believed apparent at the time of that decision, only a working rule was enunciated in Ward, not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group. The \"general underlying themes of the defence of human rights and anti‑discrimination\" (p. 739) were to remain the paramount consideration in determining a claimant's membership in any particular social group. I note that the emphasis on this point was not lost on either the appellant or the respondent in this case.\n\nAs the appellant does not claim membership in either the first or the third category under the working rule, only the second category need be considered. The starting point for this inquiry, then, is to determine whether the appellant is voluntarily associated in a manner so fundamental to his human dignity that he should not be required to forsake it. In approaching this question, I find it necessary to offer further commentary on two particular passages of my reasons in Ward: the simplified distinction between what one does as opposed to what one fundamentally is, as well as what should properly constitute the object of a claimants' purported voluntary association.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-64", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 85", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Ward, I stated, at pp. 738-39: Surely there are some groups, the affiliation in which is not so important to the individual that it would be more appropriate to have the person dissociate him‑ or herself from it before Canada's responsibility should be engaged. Perhaps the most simplified way to draw the distinction is by opposing what one is against what one does, at a particular time. For example, one could consider the facts in Matter of Acosta [Interim Decision 2986, 1985 WL 56042 (B.I.A.)], in which the claimant was targeted because he was a member of a taxi driver cooperative. Assuming no issues of political opinion or the right to earn some basic living are involved, the claimant was targeted for what he was doing and not for what he was in an immutable or fundamental way. [Emphasis in original.]", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-65", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 86", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The distinction between what one fundamentally is as opposed to what one merely does offers, as was explained, the most simplified way of discerning when Canada's obligations to refugees should be able to be invoked. Such an inquiry only comes after a consideration of whether an issue exists concerning basic human rights has been undertaken. This simplified distinction was never intended to replace the Ward categories. It is still necessary under the second category to consider whether an association exists that is so fundamental to members' human dignity that they should not be required to forsake it. To apply this simplified distinction without proper consideration of the context in which it arose can lead to ludicrous results. Accepting that the appellant's own particular social group has yet to be yielded by my analysis up until this point of my reasons, I find it difficult to conceive that the associative qualities of having children may be considered so sufficiently analogous to the associative qualities of being a member of a taxi driver cooperative to warrant any meaningful comparison. Moreover, if the distinction was treated as a hurdle claimants are obliged to pass, behaviour fundamental to one's basic humanity, such as having children, could always be classified out of context as something one merely does rather than something one actually is. To pursue this example, however, surely it is nonsensical to find other than that one fundamentally is a parent. Parenting cannot be considered an activity that one merely does, as interchangeable as a particular occupation, without distorting the primary focus of refugee law: the assurance that basic human rights are not fundamentally violated without international recourse.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-66", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 87", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "A further issue calls for clarification. The majority of the court below rejected the appellant's claim that he was a member of a particular social group under the second working rule on the basis that there was no evidence of voluntary, active, association. Upon reflection, it is apparent that it may seem possible to conclude that for a refugee to fall within the parameters of the second Ward category, such claimant would have to establish some type of voluntary association with a specific group. In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. Such a claimant is in no manner required to associate, ally, or consort voluntarily with kindred persons. Professor Audrey Macklin in \"Canada (Attorney‑General) v. Ward: A Review Essay\" (1994), 6 Int'l J. of Refugee L. 362, offers an analysis that returns the second Ward test to its proper inquiry. She states, at p. 375: In principle, an anti‑discrimination approach should look at the imposed social consequences of possessing certain attributes. After all, it hardly matters to a racist whether a person of colour sees himself or herself as united with other people of colour in a stable association to achieve common purposes. As long as perpetrators of persecution treat people with a shared attribute as comprising a group by virtue of that common characteristic, whether individuals so identified would choose to see themselves as united in any meaningful sense has little impact. The point can also be illustrated using students as a social group.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-67", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 87", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Assume that a Chinese student is persecuted by police in the wake of the Tianamen Square pro‑democracy, anti‑government demonstrations. The student may be entirely apolitical, have taken no part in the protest, and indeed have nothing to do with fellow students outside the classroom. The police may not even care whether the student shares the views of those who participated in the demonstrations. It is enough to be a student, and for students to have instigated the demonstrations. That student cannot be said to `voluntarily associate' with other members of the designated social group, but may be understood as being voluntarily associated with the status of student for reasons fundamental to human dignity. As Professor Macklin recognizes, the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-68", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 88–90", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "I accept the respondent's categorization of the right asserted as the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. This fundamental right has been recognized in international law in the International Covenant on Civil and Political Rights, December 19, 1966, Can. T.S. 1976 No. 47, Art. 23(2), the Convention on the Elimination of All Forms of Discrimination against Women, March 1, 1980, Can. T.S. 1982 No. 31, Art. 16(1)(e) (to both of which Canada and China adhere), and by the draft Programme of Action of the United Nations International Conference on Population and Development, Principle 8, at p. 9, and Chapter VII, para. 7.2, at p. 34. In my view, this association is so fundamental to the human dignity of the appellant that he should not be forced to forsake it.\n\nIn sum, I think that the majority of the Court of Appeal erred in its determination of the appellant's particular social group. Persons such as the appellant, if persecuted on the basis of having had more than one child, would be able to allege membership in a particular social group. Political Opinion\n\nThus far I have confined myself to the issue whether the appellant might properly be classified as a member of a particular social group. The possibility also exists that the appellant may have a well-founded fear of persecution on the basis of a political opinion held by or imputed to him. Given the Board's treatment of this issue, I find it necessary to make a few cursory remarks about it.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-69", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 91", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "While I understand that Ward had not been decided when the appellant's hearing took place, the Board may have erred in its consideration of the political opinion of the appellant by failing to adopt a holistic approach to the interpretation of the appellant's evidence. Specifically, the Board in its reasons only considered the appellant's evidence as to his harassment by PSB officers for his pro‑democracy activities in terms of determining whether the appellant was persecuted for his political opinion. The Board made note that no evidence had been adduced showing that the investigation of the appellant's pro‑democracy activities extended beyond April 1990. While the Board was correct that no such evidence was directly adduced, testimony was presented stating that by May 1990, PSB officers, together with neighbourhood committee members, began their harassment of the appellant and his family for having violated the birth control policy. I do not believe it would have been unreasonable for the Board to infer that, having accepted that the PSB conducted an investigation running from September 1989, until April 1990 concerning the degree and nature of the appellant's pro‑democracy activities, the immediately ensuing investigation by the PSB into the appellant's birth policy violation might have been causally linked. Of course, a refugee claimant in the position of the appellant cannot be expected to provide evidence that the two investigations were indeed related. The Board, though, should not, in its considerations, ignore such possibilities.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-70", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 91", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Given the proximity in time of two PSB investigations concerning an individual accepted by the Board as having suffered past persecution on the basis of his family status, who had confirmed to PSB officials that he was a pro‑democracy sympathizer, it does not seem improbable that the second investigation may have been a pretext to punish the appellant. This conclusion seems altogether possible considering that China is governed by an authoritarian regime scarcely tolerant of political dissent.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-71", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 92–93", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The UNHCR Handbook sets forth the approach a Refugee Board should follow on such matters. As mentioned, para. 201 instructs a Board to ascertain a wide range of circumstances and to take into account the cumulative effect of the applicant's experience as all the incidents related by the applicant, taken together, could make his fear \"well‑founded\". Following these sensible guidelines, it is quite possible that the Board drew an artificial distinction in considering PSB investigation of the appellant for his pro‑democracy activities separately from the rapidly ensuing harassment of the appellant for his violation of the population policy. Given that not all urban Han Chinese who have more than one child are required to be sterilized and that abuses of sterilization authority have been acknowledged by Chinese officials, I think there was a sufficient evidentiary basis for the Board to conclude that the PSB may have wished to force the appellant to endure this invasive surgery as a cumulative punishment for his sympathies and actions contrary to the government. The appellant's testimony that the PSB derided him as an \"enemy of the class\" and accused him of acting \"purposely against the government\" upon learning of the birth of his second child, can support a conclusion that, from the perspective of the local authorities, his violation of the population policy was linked to his known political stance.\n\nHaving concluded the matter of the appellant's political opinion in this manner I leave it for another case to resolve whether the action itself of having a child can constitute, in the words of Goodwin-Gill, supra, quoted in Ward, at p. 746, an \"opinion on any matter in which the machinery of state, government, and policy may be engaged\". The Decision in Cheung Determinative", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-72", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 94–97", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally I should add a word about the treatment accorded by the majority of the Federal Court of Appeal to its own recent decision in Cheung. As I read them, I am unable to see any relevant distinction between that case and the present and the court should not have departed from its reasoning in Cheung, particularly in view of this Court's endorsement of that decision in Ward. I am aware that the Federal Court of Australia has recently followed Heald J.A.'s interpretation of Ward on that point; see Minister for Immigration and Ethnic Affairs v. Respondent A, supra, but for my part I find the reasons of Sackville J., the reviewing judge in that case, ((1994), 127 A.L.R. 383), more consistent with the reasoning in Ward as I have explained earlier. Disposition\n\nFor the foregoing reasons, I would allow the appeal with costs throughout. I would remit the case to the Refugee Board for hearing de novo in a manner consistent with these reasons. The judgment of Sopinka, Cory, Iacobucci and Major JJ. was delivered by Major J. -- I. Facts\n\nThe appellant is a university educated married man who held a managerial position in a manufacturing company and owned a restaurant business in the city of Guangzhou in the People's Republic of China (PRC). He fled to Hong Kong on July 19, 1990, and proceeded to Canada where he sought Convention refugee status based on his fear of persecution because of his political opinion and membership in a particular social group.\n\nIn his testimony before the Immigration and Refugee Board, the appellant alleged that during the Cultural Revolution his family was persecuted owing to his father's background as a landowner.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-73", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 98–99", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant operated a restaurant in Guangzhou. On June 5 and 6, 1989, students in the pro-democracy movement demonstrated outside his restaurant. Since the appellant was sympathetic to the political cause of the students, he donated food, drinks and 100 renminbi to them during those two days. Between July 1989 and April 1990, Public Security Bureau (PSB) officers visited the restaurant on 13 or more occasions. During these visits, they accused the appellant of having participated in the pro-democracy movement. They also interrogated both the staff and customers at the restaurant regarding the appellant and the students. After the second PSB visit in mid July 1989, the appellant voluntarily reported to the office of the PSB and wrote a confession of his pro-democracy activities.\n\nThe appellant alleged that in April 1990, the PSB discovered the birth of his second child (born in November 1989) and accused him of having violated the birth control policy of the country. PSB officers visited his home on five occasions concerning this violation. They demanded a monetary fine and the sterilization of either the appellant or his wife. His wife lost her job owing to this violation. After the last visit, the appellant voluntarily submitted a written undertaking to the PSB office that he would undergo sterilization within three months. Twenty days later, the appellant left the PRC on a false passport.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-74", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 100", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant testified that since his departure from the PRC, he had learned that his violation of the country's birth control policy has caused his family to suffer continued harassment in the form of PSB visitations to their home and that, on one occasion, his wife was detained overnight by the PSB. He also alleged that, should he return to the PRC, he might face arrest, imprisonment, long-term unemployment, or even murder. II. Legislation Immigration Act, R.S.C., 1985, c. I-2 (rep. & sub. c. 28 (4th Supp.), s. 1) 2. (1) In this Act, \"Convention refugee\" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; III. Judicial History A. Immigration and Refugee Board (Refugee Division) October 23, 1991 (1) Family Background", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-75", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 101–103", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "On the appellant's claim that he feared persecution as a result of his family background, the Board held: This panel accepts that the various members of the claimant's family, including the claimant, have suffered persecution during the Cultural Revolution due to their family background. However, no evidence was adduced to suggest that the claimant was persecuted beyond the period of the Cultural Revolution. Furthermore, he was able to subsequently obtain a university education and several managerial positions. According to all the above, this panel does not find the claimant to have good grounds for fearing persecution based on his membership in a particular social group, namely, his family background. (2) Political Opinion\n\nWith respect to the appellant's alleged fear of persecution by reason of his participation in pro-democracy activities, the Board noted that the PSB had made no attempt to arrest the appellant after he had voluntarily confessed his activities to the PSB although they had ample opportunity to do so.\n\nThe Board found no evidence to suggest that the investigation into the appellant's involvement with the pro-democracy movement continued beyond April 1990 and noted that five months after his departure from the PRC in July 1990, he had been able to renew his driver's licence. The Board held: Based on the evidence, this panel does not find the claimant to have good grounds for fearing persecution by reason of his political opinion as manifested through his pro-democracy activities. (3) Sterilization Not Persecution", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-76", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 104–106", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "With regard to the appellant's alleged fear of persecution by reason of forced sterilization, the Board held: The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the [Chinese] government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well-founded. The Board concluded that the appellant was not a Convention refugee. B. Federal Court of Appeal, [1993] 3 F.C. 675\n\nThe appellant appealed only on the issue of forced sterilization. The three members of the Federal Court of Appeal dismissed the appeal with one justice dissenting. (1) Heald J.A.\n\nHeald J.A., in dismissing the appeal, noted at p. 686 that the Federal Court of Appeal concluded in Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), at p. 322, that \"forced or strongly coerced sterilization\" of a woman constituted persecution since it violates her security of the person and subjects her to cruel, inhuman and degrading treatment. He held that the sterilization of a man is not qualitatively different from that of a woman and therefore is persecution pursuant to Cheung.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-77", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 107–109", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Heald J.A. noted, however, that not all breaches of the one-child policy would result in forced sterilization. Forced sterilization is not a law of general application but an enforcement measure taken by only some local authorities. Other local authorities use acceptable sanctions such as economic ones. Therefore, the determination of whether a person with more than one child has a well-founded fear of persecution is a finding of fact which depends upon the evidence in respect of the practices of the relevant local authority.\n\nOn a review of the evidence, Heald J.A. held that the appellant had not established a well-founded fear of sterilization. This case differs from Cheung in that the Board did not find that the appellant faced a reasonable chance of forced sterilization if returned to China. The appellant and his family faced the imposition of economic sanctions which are not sufficient to establish persecution.\n\nAlthough he held that the appellant had not established a well-founded fear of sterilization, Heald J.A. proceeded to discuss whether the appellant could be considered to be a member of a \"particular social group\" in light of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, which was decided by this Court subsequent to the decision in Cheung.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-78", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 110", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Heald J.A. held at p. 691 that, a social group defined as \"parents in China with more than one child who disagree with forced sterilization\" does not fall within any of the three categories of particular social group outlined in Ward. He emphasized at p. 690 the principle enunciated in Ward that fear must emanate from what the claimant is or was \"in an immutable or fundamental way\", and not what he or she does or did. He observed at p. 691 that \"the distinction between parents who have and have not breached the one-child policy derives from what the individuals have done...and not from what the individuals are\" (emphasis in original). He also noted that the group does not belong in the category of those who voluntarily associate for reasons fundamental to human dignity because there was no evidence of voluntary active association within the group. Heald J.A. added that the group proposed by the appellant was defined solely by the fact that its members face a particular form of persecutory treatment. He said, at p. 693, that a definition of this kind \"voids the enumerated grounds of content\" and conflicts with the rejection in Ward of groups defined \"merely by virtue of their common victimization as the objects of persecution\". Therefore, Heald J.A. concluded that the appellant had not established persecution by reason of membership in a particular social group.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-79", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 111", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Heald J.A. also rejected the appellant's argument that a failure by a citizen to agree to sterilization was tantamount to a political statement. He held that the persecutory treatment did not emanate from a refusal to submit to sterilization but from a breach of the one-child policy. He found there was no evidence the Chinese authorities believed acceptance of the one-child policy was integral to their authority. He stated that the one-child policy is within the jurisdiction of the Chinese government and cannot, in itself, be characterized as persecutory. Sanctions imposed for breach of the policy must be accepted, and despite their abhorrence, cannot serve as a basis for persecution by reason of political opinion. Therefore he concluded that the appellant does not face a well-founded fear of persecution by reason of his political opinion. (2) Desjardins J.A.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-80", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 112–113", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Desjardins J.A. also dismissed the appeal but on slightly different grounds. She considered whether the appellant was a member of a particular social group in light of the legal principles set out in Ward. She found at p. 716 that since there was no voluntary status present in this case, the only category from Ward into which the appellant might fall would be a group defined by \"an innate or unchangeable characteristic\". Desjardins J.A. held that the innate and unchangeable characteristic must be so strong that it makes a group of individuals what they are and that it must exist independently of a basic human right which they fight for. She found that forced sterilization stands in violation of a basic human right but that this right is common to all humanity and not unique to any social group to which the appellant may have belonged. The appellant was targeted for what he did and not for what he is and therefore was not a member of a particular social group.\n\nDesjardins J.A. then examined whether there was any basis for a claim on the ground of political opinion, as defined by this Court in Ward. She found that there was no specific evidence to suggest that the appellant's action, motivated in defence of his basic human rights, was viewed by the Chinese local authorities as a gesture of defiance to the national authority. Furthermore, she concluded that forced sterilization under the one-child policy fell beyond the scope of \"persecution\" under the Convention. She held that the Convention does not cover violations of human rights imposed by local authorities in pursuit of a legitimate state objective such as population control. (3) Mahoney J.A. (dissenting)", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-81", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 114–115", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mahoney J.A., in dissent, would have allowed the appeal. He stated at p. 704 that Cheung stood for the proposition that \"involuntary sterilization -- physical abuse that is an irreversible and serious intrusion on the basic rights of the individual -- is persecution\". He noted that the Board neither made nor implied any adverse finding as to the credibility of any of the evidence presented by the appellant. He concluded that on the evidence, the appellant's fear of forced sterilization, were he to return to China, was subjectively and objectively well-founded.\n\nMahoney J.A. held that this case is not distinguishable from Cheung and that nothing in Ward casts any doubt on the correctness of Cheung. He stated that formal association is not necessary to fall within the ambit of a group whose members voluntarily associate for reasons fundamental to their human dignity. He held that it is the shared reason fundamental to human dignity that defines and constitutes the group and that a conscious act of association is not an essential element. IV. Issues 1.Is forced sterilization a form of \"persecution\" within the meaning of s. 2(1)(a) of the Immigration Act? 2.Are persons who face forced sterilization members of a \"particular social group\"? 3.Are persons who refuse forced sterilization expressing a \"political opinion\"? 4.Assuming persons who have a well-founded fear of sterilization for violating China's one-child policy are eligible to be considered Convention refugees, does the appellant in this case have a well-founded fear of forced sterilization or of other persecution so as to be granted Convention refugee status? V. Analysis", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-82", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 116–117", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The central issue in this appeal is whether the appellant can be classified as a Convention refugee. The definition of \"Convention refugee\" in s. 2(1) of the Immigration Act, requires that an applicant for refugee status have \"a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion\". In this case, forced sterilization is the form of persecution to which the appellant claims he will be subjected if he returns to the PRC. The appellant argued that forced sterilization constitutes persecution for the purposes of the definition of Convention refugee and that this persecution is for reasons of either his membership in a particular social group or his political opinion, as expressed by breaching the one-child policy.\n\nThe appellant placed particular reliance on the Federal Court of Appeal's recent decision in Cheung which held a Chinese woman with a well-founded fear of sterilization qualified as a Convention refugee. In Cheung the claimant was forced to discontinue use of an intra-uterine device for medical reasons and underwent numerous abortions. After the birth of her second child, the Family Planning Bureau came to her home and took her to the hospital to be sterilized. The sterilization operation was postponed for six months because of an infection and before that six-month period had expired, Ms. Cheung fled from the PRC. Linden J.A. noted in his reasons (at p. 318): It was accepted by the Board that the appellant would be sterilized if she were forced to return to China.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-83", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 118", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Cheung a distinction was made between women who have more than one child and have a well-founded fear of forced sterilization and those who have more than one child but do not have this fear. This distinction must be made in light of the fact, which was relied upon in Cheung, that forced sterilization is not a law of general application but rather an enforcement measure used by some local authorities with, at most, the tacit acceptance of the central government. Thus, the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-84", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 119", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "For the purpose of this appeal I am assuming (without deciding) that Cheung was rightly decided and that the appellant is a member of a particular social group within the meaning of s. 2(1). However, the appellant cannot attempt to rely upon the Cheung decision unless he has established that he has a well-founded fear of sterilization. The test for establishing a fear of persecution was clearly stated by La Forest J. in Ward, at p. 723: More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen [(1984), 55 N.R. 129 (F.C.A.)], at p. 134: The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear. The test set out by La Forest J. in Ward is consistent with the approach recommended in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979). That document, which, although not binding, has been accepted as being highly persuasive authority in Canada, explains a \"well founded fear of being persecuted\" as follows: 38. To the element of fear -- a state of mind and a subjective condition -- is added the qualification \"well-founded\". This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-85", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 119–121", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The term \"well-founded fear\" therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration.\n\nBoth the existence of the subjective fear and the fact that the fear is objectively well-founded must be established on a balance of probabilities. In the specific context of refugee determination, it has been established by the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that the claimant need not prove that persecution would be more likely than not in order to meet the objective portion of the test. The claimant must establish, however, that there is more than a \"mere possibility\" of persecution. The applicable test has been expressed as a \"reasonable possibility\" or, more appropriately in my view, as a \"serious possibility\". See: R. v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.).\n\nIn this case, the Board made no finding as to whether the appellant had either a subjectively or an objectively well-founded fear that he would be subjected to forced sterilization if he returned to China. This case is thus immediately distinguishable from Cheung where the Board at first instance made a clear finding that the claimant would face forced sterilization if returned to China.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-86", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 122–123", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant first raised the issue of forced sterilization in his Personal Information Form. At his hearing, the Board specifically requested the appellant's counsel to focus on this aspect of his claim and provided the appellant with ample opportunity to establish that he had a well-founded fear: PRESIDING MEMBER: On reviewing the Personal Information Form, the Panel would like you to focus on ... the portions pertaining to his fear of persecution caused by the alleged forced sterilization.\n\nAs is common in refugee determination proceedings, the appellant did not testify in English but rather testified in Cantonese through an interpreter. The task of the interpreter in a judicial or quasi-judicial hearing is an extremely difficult one and it is hardly surprising that simultaneous translation can sometimes lead to minor infelicities of style. However, the Board (and this Court when reviewing the written record) is well equipped to look past grammatical errors and to grasp the general import of a claimant's testimony, particularly when that testimony is considered as a whole. This is a fundamental part of the sympathetic approach to the evidence which is advocated in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-87", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 124", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is the responsibility of the Presiding Member of the Board to ensure that the interpretation provided to the Board and which is reflected in the written record is as accurate as possible in the circumstances. The primary problem in this regard is when a claimant speaks too quickly or for too long to allow the interpreter to interpret all of the information accurately. In this case, the accuracy of the record is substantially assisted by the fact that the Presiding Member made every effort to ensure that the interpreter was able to interpret the claimant's testimony in a complete and thorough fashion. The efforts of the Presiding Member are apparent on the record early in the portion of the hearing dealing with sterilization at a point when the claimant was describing the one-child policy rather than his personal experience: QAnd you state that they said that you had disobeyed the birth control policy. What is the birth control policy in China? AThe birth policy in China was one-child-per-family. Because I am the only son in the family, I myself would like to have more children. Q You say that everybody -- PRESIDING MEMBER: Excuse me. Mr. Lau, I believe the Claimant has said a little bit more than what you've interpreted. He mentioned something pertaining to the interval between the children? Perhaps instead of your trying to remember, if I may ask the Claimant. Mr. Chan, did you mention in your last statement something pertaining to the interval between the two children? CLAIMANT: Yes. PRESIDING MEMBER: Just before you start, Mr. Lau, it's not a reflection on your part. The Claimant did go on for very long, and I didn't stop him. (CLAIMANT SPEAKS IN CANTONESE) PRESIDING MEMBER: Okay, stop there. You have to make your sentences shorter so that Mr.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-88", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 124–125", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Lau can interpret fully. As can be seen from this portion of the transcript, Ms. Nee, the Presiding Member understood Cantonese and thus was able to identify specifically the portion of the appellant's testimony which the interpreter had missed. Assigning Board members to refugee determination hearings who understand the claimant's native language and who are thus able to confirm the accuracy of the record independently is a practice to be strongly encouraged.\n\nThe appellant's oral testimony before the Board was generally consistent with his Personal Information Form statement. He testified that his second son was born in November 1989 and that the Public Security Bureau became aware of the child while conducting a routine census between April and June 1990. The appellant complied with the PSB's demand that he register the child at the police station. On two subsequent occasions the PSB attended at the appellant's home in his absence and allegedly demanded that the appellant and his wife pay a fine of 8,000 dollars and that one of them submit to sterilization: During the second and the third visit, they demand for a penalty for 8,000 dollars, and also either I or my wife should get a sterilization. The second and the third visit, at that time I was not at home. I was told by my wife when I got home. The first time happened in the late of May. They want to find out who is going to accept the sterilization. If nobody was willing, then [we] would be forcibly taken to the -- to get the sterilization.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-89", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 126–127", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant stated that the PSB visited his home two further times and requested that either the appellant or his wife sign a document consenting to sterilization. After the fifth visit, the appellant complied with the request to sign the consent form: After three days after the fifth visit, I went to the police station and hand in the document saying that I would be willing to take the sterilization operation within three months, and 20 days after that, I left China.\n\nThe appellant testified that he and his family decided that he should give his written consent to sterilization in order to put an end to psychological harassment caused by frequent visits by the PSB and possible financial coercion: QNow, you stated that you signed the confirmation that you would undergo sterilization. Why did you sign that confirmation? ABecause I felt if I did not sign, I cannot accommodate their request. They can come every day, from the morning to night. Then psychologically, we cannot take that, and also they can go one step ahead, terminate me from my job, and also terminate my parents'. If it has to come to such a stage, that means we would not be able to live, so we sign -- I signed this document so to pass this difficulty. The appellant also gave evidence that his wife's employment was terminated because of this breach of the one-child policy.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-90", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 128–129", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant's statement in his Personal Information Form and his oral testimony is some evidence that he had a subjective fear of forced sterilization. However, a refugee claimant cannot establish a well-founded fear of persecution simply by alleging the existence of that fear. In order to meet the subjective aspect of the test for a well-founded fear of persecution, the claimant must establish to the satisfaction of the Board that the alleged fear exists in the mind of the claimant. Normally, where the claimant is found to be a credible witness and his or her testimony is consistent, the claimant's evidence will be sufficient to meet the subjective aspect of the test.\n\nIn this case, the appellant's testimony, even with respect to his own fear of forced sterilization, is equivocal and inconsistent at times. In response to a question by his counsel, the appellant testified that he did not intend to abide by the PSB request for sterilization: QDid you ever intend to abide by their request for sterilization? AI feel that whether one would like to take a sterilization is his own choice. Even though I'm not going to have a third child, it would not [be] absolutely necessary for me to take a sterilization operation. So I had never thought of going to have this kind of cruel operation.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-91", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 130–132", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "As well, when asked specifically what would happen if he were to return to China, the appellant made no mention of forced sterilization: QWhat do you think would happen if you were to return to China? AIf I going back to China, the most possible thing would be arrest, put in jail. Could also be unemployed for the rest of my whole life, and could not earn a living. If talking something more serious, then I probably will be murdered. QWhy do you feel that this would happen to you if you were to return? A... Regarding my second child, it is a fact that that has affect the bonus of some of the neighbourhood committee members. They would be hostile and would try to revenge. They would take the excuse of my difference in political view, and arrest me and put me in jail.\n\nIt is worth noting that the Board found that the oral testimony of the appellant was insufficient to establish his principal claim of persecution when it found that the appellant was not persecuted on the basis of his political pro-democracy opinion. This finding was not appealed.\n\nIn my opinion, the evidence of the appellant with respect to his subjective fear of forced sterilization is equivocal at best. However, in the absence of an explicit finding by the Board on this point, it would not be appropriate for this Court to determine that the appellant did not have a subjective fear of forced sterilization.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-92", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 133–135", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Nevertheless, even if the appellant is given the benefit of the doubt on the question of a subjective fear, the existence of a subjective fear of persecutory treatment is not sufficient to meet the statutory definition of a Convention refugee. It is the responsibility of the claimant at a refugee determination hearing to lay an evidentiary foundation upon which the Board can conclude not only that the fear existed in the mind of the claimant but also that it was objectively well-founded.\n\nThe objective component of the test requires an examination of the \"objective situation\" and the relevant factors include the conditions in the applicant's country of origin and the laws in that country together with the manner in which they are applied: see UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras. 42 and 43.\n\nThe appellant did not meet the burden of proof on the objective aspect of the test. Specifically, he failed to adduce any evidence that his alleged fear of forced sterilization was objectively well-founded.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-93", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 136", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The documentary evidence with respect to China's population control policy which was presented by the appellant to the Board included the February, 1991, Country Reports on Human Rights Practices for 1990 of the U.S. State Department. This document describes the various enforcement measures which are used in connection with the one-child policy. This document makes it clear that the methods of enforcement are within the control of local authorities and vary widely from one area to another (at pp. 852-53): China's population control policy relies on education, propaganda, and economic incentives, as well as more coercive measures, including psychological pressure and severe economic penalties. Rewards for couples who adhere to the policy include monthly stipends and preferential medical, food, and educational benefits. Disciplinary measures against those who violate the policy often include stiff fines, withholding of social services, demotion, and other administrative punishments. In at least a few cases, people have been fired from their jobs (a very serious penalty in China, affecting housing, pension, and other social benefits) for refusing to terminate unauthorized pregnancies. Physical compulsion to submit to abortion or sterilization is not authorized, but continues to occur as officials strive to meet population targets. Reports of forced abortions and sterilizations continue, though well below the levels of the early 1980's. While recognizing that abuses occur, officials maintain that China does not condone forced abortion or sterilization, and that abuses by local officials are punished. They admit, however, that punishment is rare and have yet to provide documentation of any punishments.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-94", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 136", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Enforcement of the family planning policy has been inconsistent and varies widely from place to place and from year to year. The 1990 census data indicate that the average number of children per family (2.3) and the population growth rate (1.5 percent) remain significantly higher than would be produced by successful enforcement of official policy. In many areas, couples apparently are able to have several children without incurring any penalty, while in other areas enforcement has been more stringent. Local officials have great discretion in how, and how strictly, the policy is implemented. Because penalties for excess births can be levied against local officials and the women's work units, many individuals are personally affected, providing an additional potential source of pressure. [Emphasis added.]", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-95", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 137", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant failed to adduce any evidence for the Board that forced sterilization is actually carried out and not merely threatened by the local authorities in his area. Evidence with respect to the enforcement procedures utilized within a claimant's particular region at the relevant time should be presented to the Board. Where such evidence is not available in documentary form, the claimant may still be able to establish that the fear was objectively well-founded by providing testimony with respect to similarly situated individuals. This liberal approach to establishing the facts which represents a significant relaxation of the usual rules of evidence is intended to grant the claimant the benefit of the doubt in cases where strict documentary evidence may be lacking. This approach is fully consistent with the guidelines set out in the UNHCR Handbook: 43. These considerations need not necessarily be based on the applicant's own personal experience. What, for example, happened to his friends and relatives and other members of the same racial or social group may well show that his fear that sooner or later he also will become a victim of persecution is well-founded. The laws of the country of origin, and particularly the manner in which they are applied, will be relevant. The situation of each person must, however, be assessed on its own merits. In this case, the appellant failed to provide either documentary evidence or anecdotal evidence to substantiate his claim that the pressure from the Chinese authorities to submit to sterilization would extend beyond psychological and financial pressure to actual physical coercion.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-96", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 138–139", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "Additionally, the appellant did not produce any evidence to establish that the forced sterilization used by some local authorities in China is inflicted upon men by the local authorities in his area, Guangzhou. In fact, the documentary evidence produced by the appellant strongly suggests that physically coercive penalties for breach of the one-child policy apply principally if not solely against women. In one document which the appellant filed with the Board entitled Slaughter of the Innocents: Coercive Birth Control in China, written by John S. Aird, the author quotes, at p. 71, a portion of the family planning regulations adopted by the Tianhe District in Guangzhou as of January 1, 1987. These regulations make it clear that it is women who are subjected to physical coercion for breach of the one-child policy: [A]ny woman who does not have an intrauterine device inserted within four months after giving birth shall be fined 20 yuan per month until she accepts the device. If a woman is allowed two children under the law and does not accept an intrauterine device after the birth of the second child, she must be sterilized. Before that measure is taken, she will be fined 50 yuan per month ... If a woman who has one child fails at birth control, the pregnancy must be terminated and the woman sterilized.\n\nIn this regard it is notable that the passage from the Country Reports quoted above states that penalties for excess births are levied against women's work units. In this case the appellant testified that his wife had lost her job as a result of the breach of the one-child policy, but his Personal Information Form reveals that he maintained his own job as a Manager in the Hung Cheong Works & Trading Company in Guangzhou until the time of his departure from China.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-97", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 140", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The other evidence provided by the appellant also failed to support an objectively well-founded fear of forced sterilization. At the time of the hearing in October 1991, more than a year after the appellant had signed the form confirming that he would agree to be sterilized in place of his wife within three months, no action had been taken to compel the sterilization of the appellant's wife. In fact, at the time of the hearing even the fine of 8,000 dollars had not been paid and the local authorities had apparently accepted a reduction in the amount of the fine in recognition of the fact that the wife was now unemployed: QThe 8,000 dollars that the Public Security wanted you to pay, did you ever pay that? AUntil I left China, it wasn't paid. They said -- they said under the condition situation, we don't have that money, they would take a reduction. QAnd how much was the reduction? AReduced to 4,800. My wife was dragging and not paying this penalty. Because of that, my child was not allowed officially entered into the record, so recently I have -- I have consulted with my wife, and the money probably will be paid. Furthermore, the appellant's family successfully renewed his driver's licence in December 1990, some five months after he had left the country. As was noted by the Board with respect to the appellant's separate claim for refugee status on the grounds of pro-democracy political opinion, the renewal of his driver's licence is not consistent with his claim of state imposed persecution.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-98", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "para 141", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The renewal of the driver's licence is inconsistent with the appellant's assertion that the Chinese authorities would have resorted to physical compulsion to sterilize him. The available evidence with respect to the pressure applied by Chinese authorities to submit to sterilization suggests that the modus operandi was rather to apply financial and regulatory pressure. The 1987 regulations from the appellant's city of Guangzhou, as quoted in the materials provided to the Board by the appellant (Slaughter of the Innocents: Coercive Birth Control in China, supra, at pp. 71-72) provide that: If an unauthorized baby is the second, third, or subsequent child in a family and sterilization has not been accepted, the family will be denied permission to build a dwelling, their water and electricity will be cut off (or their water and electric rates will be increased five to ten times, depending on the type of residence), grain coupons will not be issued, [and] driver's licenses and private business licenses will be revoked. All these sanctions will end when the sterilization procedure is performed. (The above sanctions apply to all those listed in the family registration book.) [Emphasis added.] It is unknown what effect the discovery of the birth of his second child would have had on the private business licence which the appellant held for his privately owned seafood restaurant. According to the appellant's testimony, the appellant sold the restaurant in order to raise money to come to Canada in April 1990, before his second child was discovered by the PSB. The Board, and this Court, can rely only on the reasonable deductions which can be drawn from the available evidence, which in this case involves the driver's licence.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-99", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 142–143", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "My colleague, La Forest J. argues that no conclusions can be drawn from individual items of evidence and that on each item the appellant should be given the benefit of the doubt, often by considering hypotheticals which could support the appellant's claim. This approach handicaps a refugee determination Board from performing its task of drawing reasonable conclusions on the basis of the evidence which is presented. This approach is also fundamentally incompatible with the concept of \"benefit of the doubt\" as it is expounded in the UNHCR Handbook: 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. [Emphasis added.]\n\nAll the available evidence shows that the Chinese authorities attempt to persuade couples with more than one child to submit to sterilization by psychological, social and financial pressure, including heavy fines. The primary agent of enforcement is the woman's work unit but such measures can include other family members specifically in the case of government controlled licences such as driver's licences. The generally known facts also suggest that some, but not all, local authorities exceed these measures and resort to physical compulsion primarily against women.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-100", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 144–145", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case, the appellant's testimony shows that psychological pressure was applied by frequent visits by the PSB and that financial pressure was applied by means of a heavy fine and termination of his wife's work permit. The appellant's testimony is that he gave written consent to sterilization within three months in order to avoid further psychological or financial pressure. Subsequent to the expiry of the three-month period, the evidence shows that the authorities took no steps to force the sterilization of the appellant's wife, that they significantly reduced the fine and that they renewed the appellant's driver's licence.\n\nAll of these facts, particularly when taken collectively, run directly counter to all the available evidence as to the behaviour to be expected of the authorities if their intention was to coerce the appellant physically to be sterilized. The available evidence establishes that Chinese authorities intent on physical coercion in contravention of \"official\" government policy would first exhaust all other means of coercion. Since the appellant's claim that he would be physically coerced into sterilization runs contrary to the available evidence and generally known facts it is not an appropriate instance in which to apply the benefit of the doubt in order to establish the appellant's case. The appellant's evidence is more consistent with the appellant's later comment that the major concern of the local officials was the loss of their bonus owing to the breach of the one-child policy, a concern which presumably would have been substantially alleviated by the payment of the stiff fine imposed by those authorities.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-101", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 146–147", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "I am also unable to accept the conclusion of La Forest J. that the treatment of the appellant with respect to his second child was harsher because of his political opinions expressed by his giving food to pro-democracy demonstrators. There is no suggestion in the appellant's evidence that he considered the visits to his restaurant and the enforcement of the one-child policy to be related. Nor does the evidence suggest that the appellant was treated unusually harshly under the policy: as was noted above, he retained his managerial position and the fine imposed on him was significantly reduced to reflect the loss in earnings of his wife who did lose her job.\n\nOf greater concern, however, is the fact that no appeal was ever taken from the Board's finding that the appellant did not face persecution for his pro-democracy political opinion. Thus, the Board's decision on the question of persecution in relation to the appellant's pro-democracy political opinion is final. This Court should not seek to overturn the Board's determination by introducing new factors at this level into an issue which was finally determined at the Board level and not appealed. Furthermore, the appellant did not raise the possibility that he might face forced sterilization for his pro-democracy political opinion either at the Board level or at any level on appeal. It is not open to this Court to decide the appellant's case on the basis of an issue on which leave to appeal was not granted. No argument was heard by the Court on this issue and no reliance was placed on it by the appellant himself.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-102", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 148–149", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "The only issue raised in this appeal which involved political opinion was whether the action of having a child in contravention of China's one-child policy was an action which was sufficiently expressive of a political opinion to independently found a refugee claim. Given my finding that the appellant did not establish a well-founded fear of persecution, I do not find it necessary to deal with this issue.\n\nIn light of the fact that not all persons who have breached the one-child policy in China face a reasonable chance of forced sterilization, the appellant must establish a well-founded fear of forced sterilization before he can attempt to rely on the decision in Cheung. The appellant failed to adduce any evidence to establish on a balance of probabilities that his alleged fear of forced sterilization was objectively well-founded. On the basis of the oral testimony and documentary evidence presented by the appellant, forced sterilization remains no more than a \"mere possibility\" for the appellant. In the absence of that evidence, the Board was unable to determine that the appellant has a well-founded fear of persecution in the form of a forced sterilization.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1299-103", + "doc_type": "caselaw", + "act_code": "[1995] 3 SCR 593", + "act_short": "Chan", + "act_name": "Chan v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", + "marginal_note": "paras 150–151", + "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", + "part": "Supreme Court of Canada", + "division": "", + "text": "This conclusion is decisive of the appeal as the appellant has failed to establish on the evidence presented an essential component of the definition of Convention refugee. In the absence of the appellant's meeting the burden of establishing a proper fact foundation on a balance of probabilities, appellate courts are handicapped in attempting to determine legal issues not grounded on the facts and should not attempt to do so. Therefore, the question of whether Cheung should be followed in light of the decision of this Court in Ward should await a case in which the necessary facts have been established in the refugee determination hearing.\n\nThe appellant failed to present any evidence with respect to a crucial element of his claim. There was, therefore, no legal basis upon which the Board could accept him as a convention refugee. The appeal must, therefore, be dismissed. Appeal dismissed, La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting.", + "current_to": "1995-10-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" + }, + { + "id": "scc-1425-1", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 1–4", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Sopinka J. (dissenting) -- I agree with the conclusion reached by Justice Major and with his reasons. In my opinion, however, even if, as found by the Court of Appeal and Justice Gonthier, the trial judge erred in excluding the evidence produced by the search of the appellants’ vehicle, the appeal must be allowed.\n\nIn my opinion, the Crown and the majority of the Court of Appeal have misapprehended the obligation of the Crown in an appeal from acquittal based on an error of law at trial.\n\nIn an appeal from an acquittal at trial based on an error of law, the Crown has the duty of satisfying the court that the verdict would not necessarily have been the same if the error had not occurred (Vézeau v. The Queen, [1977] 2 S.C.R. 277). In R. v. Morin, [1988] 2 S.C.R. 345, at p. 374, this Court held that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty”.\n\nIn order to satisfy this burden, the Crown must show that either the excluded evidence or the excluded evidence together with other evidence could reasonably result in a conviction. The court must be persuaded of this to a reasonable degree of certainty.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-2", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 5", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this appeal, we have the evidence of the search and no other evidence in the record. What transpired at trial, after the ruling excluding the evidence of the search, is summarized in the following extracts from the trial transcript: MR. JOHNSON: . . . At this time I would simply advise the Court that we -- if -- if your decision had been different on your interlocutory judgement or if we had otherwise proceeded with the matter, it would have been my intention to have some more viva voce evidence from Corporal Ed Paquet who was giving evidence at the time we concluded the matter in October and adjourned. It was also my intention to call evidence from Constable Joseph Oliver and it was also my intention to call evidence from Mr. Gary Von Ritchter, who is -- COURT: Well nobody -- MR. JOHNSON: An employee of the -- COURT: Nobody is stopping you from doing that. MR. JOHNSON: No well I say it was my intention to call those two -- or those three, Mr. Von Ritchter being the third from the New Brunswick Liquor Corporation. But in the -- light of your decision, I believe it would -- COURT: Their -- their evidence, if -- if it -- MR. JOHNSON: Be futile to -- COURT: Constable Ward’s evidence is the main evidence. If I am correct, then the Crown’s rights of detention rise or fall on Constable Ward’s testimony. The other testimony would be collateral and really not -- not material to -- to any court coming to a decision on it I don’t think. If I’m wrong of course the other -- the other evidence may be of great help but -- MR. JOHNSON: Well in light of the ruling that you have made, Your Honour, what I have as Crown counsel agreed to do at this point is to terminate our case and not call further evidence for the Crown.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-3", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 6–7", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The evidence of the search alone is insufficient to discharge this burden. While Gonthier J. finds that it meets the standard set by the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), to authorize a search, this is a very low standard. As Gonthier J. states (at para. 14): Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices. [Emphasis added.] This hardly enables the Court to conclude with a reasonable degree of certainty that based on this evidence the verdict might well result in a conviction.\n\nApparently, the Court of Appeal did not think so but seemed to be of the view that this was not of concern to them but a matter for the new trial. After referring to s. 11(1), the Chief Justice of New Brunswick states ((1995), 157 N.B.R. (2d) 195, at pp. 208-9): It is my view that this section does not oblige a person to enter Canada only at manned or open border crossings. If that had been Parliament’s intention, it could have been expressed in such terms. Rather, s. 11(1) obliges every person arriving in Canada, with some exceptions that have no application here, to “forthwith present himself at the nearest customs office designated for that purpose that is open for business”. Mr. Jacques and Ms. Mitchell did not have an opportunity to go to the “nearest” open customs office before they were apprehended by Cst. Ward. While this may become relevant in a new trial, it does not determine the issues in this appeal . . . . [Emphasis added.]", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-4", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 8–9", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Counsel for the Crown in this Court was of the same view. When asked how, in the circumstances, the Crown expected to meet the standard, counsel replied: That is a matter to be determined at the new trial where all the evidence will be heard by a trier of fact. As observed by the Chief Justice of New Brunswick, the evidence of the search itself could not result in a conviction. The appellants were stopped just minutes after they crossed the border. As there were no customs offices on Brown Road, it would have been impossible for the appellants to have reported to a customs office before they were stopped by Constable Ward. As a result, apart from the evidence of the search, we have nothing to indicate what the evidence is that the Crown could adduce at a new trial other than the names of several witnesses. The Crown has therefore failed to discharge its duty as required by Vézeau.\n\nThis requirement is quite separate from and unaffected by what was said in R. v. Power, [1994] 1 S.C.R. 601, to which my colleague Gonthier J. makes reference. Quite apart from the Crown’s obligation arising from Vézeau, if the Crown shuts down its case in order to test an adverse ruling by the trial judge, it may be precluded from appealing if such conduct amounts to an abuse of process. In these circumstances, the Crown is disqualified from appealing. This does not mean, however, that if the Crown does not adduce evidence but no abuse of process is made out, the Crown is relieved of its obligation under Vézeau. Accordingly, it is insufficient for my colleague Gonthier J. to dispose of this point on the basis that there was no abuse of process. It is necessary to explain how the Crown has discharged its duty under Vézeau.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-5", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 10–13", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Since writing the above, Gonthier J. has amended his reasons to deal with the application of Vézeau. I can find no evidence in the record that together with the excluded evidence could reasonably result in a conviction.\n\nI would dispose of the appeal as proposed by Major J. //Gonthier J.// The judgment of Gonthier, Cory and Iacobucci JJ. was delivered by\n\nGonthier J. -- I have had the benefit of reading the reasons of my brother, Justice Major, but I am unable to agree with him that Constable Ward, the RCMP officer who stopped the appellants, lacked reasonable grounds to do so under the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), and that they were therefore arbitrarily detained and subjected to an unreasonable search and seizure in contravention of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . It follows that I would dismiss the appeal.\n\nI agree, generally, with my colleague's recitation of the facts. With respect to the officer's use of the phrase \"illegal entry\" in relation to the report he received from the U.S. Border Patrol, I note that the trial judge also used this expression in reference to border crossings. I take it that in both cases, the term \"illegal entry\" was used merely as the vernacular for a crossing at an unstaffed port of entry. I give no weight to its use.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-6", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 14–15", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The analysis of this case necessarily focuses on the Customs Act , specifically s. 99(1)(f), which authorizes the stop and search of a vehicle (or other conveyance) where an officer suspects on reasonable grounds that the vehicle is or might be involved in a breach of the Act. A breach of the Act includes an attempt, which is defined as an offence in s. 159 . With respect to the words \"might be\" in s. 99(1)(f), I agree with my colleague that they refer to the possibility that an offence is taking place. Scanning s. 99(1)(f) reveals, therefore, that police are authorized to stop and search a vehicle once an officer has formed a reasonable suspicion that there is a possibility that the vehicle is being used to smuggle or to attempt to smuggle contrary to the Customs Act or regulations thereunder. Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices.\n\nThat this threshold is not stringent, and indeed is lower than that prescribed by other statutes authorizing stops or searches in different circumstances, is eminently understandable. Canada shares a long and undefended border with the United States with many points of entry, a significant number of which are or may be unstaffed at any given time. The border facilitates not only legitimate commerce between the nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-7", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 16–17", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "This legitimate interest of the state is reflected in the scheme and substance of the Customs Act , notably Parts II and VI concerning importation and enforcement respectively. The Act grants peace officers wide powers to search persons, vehicles and goods and provides for seizure and forfeiture. The Act also recognizes that persons and goods can arrive in Canada by a variety of means and through one of many ports of entry. Points of entry are, of course, not restricted to points along the territorial limits of Canada. The concept of a border is broader than mere geographic boundaries and necessarily, so too is the scope of the Act. Persons, vehicles and goods can arrive in Canada for customs purposes and be subject to the Act even though they are already well inside Canadian territory.\n\nThe standard set by s. 99(1)(f) is not stringent but it is not illusory. It has not been argued, and I do not suggest, that s. 99(1)(f) of the Act authorizes an officer to conduct random stops of vehicles merely because they are in the vicinity of the border and on no other basis. Nonetheless, being at or in the vicinity of the border is relevant to the application of enforcement measures under the Act.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-8", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 18–19", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The unique context that border crossings present was recognized by this Court in R. v. Simmons, [1988] 2 S.C.R. 495. Dickson C.J., writing for the majority, said (at p. 528): National self-protection becomes a compelling component in the calculus. I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. Travellers arriving in Canada, whether at an airport or through any other point of entry, expect, if they do not relish, routine questioning and inspection. It is not surprising, therefore, that the appellant Jacques in the instant appeal answered Constable Ward's questions about where he had come from and what goods he was carrying just as he would have, had he been questioned at the point of entry three minutes' drive away.\n\nIn Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, Iacobucci J. observed, at p. 1072: . . . at a border the state has an interest in controlling entry into the country. Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-9", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 20", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "This passage from Iacobucci J. highlights the need for a contextual approach, which, in Dehghani and in the instant appeal, recognizes the significance of the border situation. Contextual analysis of Charter rights and freedoms is well established in this Court. As L'Heureux-Dubé J. observed, concurring, in R. v. Bernshaw, [1995] 1 S.C.R. 254, at pp. 304-6, in which the appellant challenged the admissibility of breathalyser evidence under s. 8 of the Charter : Even under the Charter , \"reasonable and probable grounds\" can mean different things in different contexts. This Court has previously referred to the standard of \"reasonable and probable grounds\" as one of \"credibly-based probability\": Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 446, and, on another occasion, of \"reasonable probability\" or \"reasonable belief\": R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166 (per Wilson J.). These different formulations are, themselves, unhelpful for the purpose of deciding what \"reasonable and probable grounds\" mean in the case at bar. What is more important is an examination of the context in which that phrase, and the values underlying that phrase, arise. . . . Notably, this Court has recognized on numerous occasions that what constitutes \"reasonableness\" and what constitutes a \"reasonable expectation of privacy\" may vary from one context to the other, depending upon the competing considerations at the heart of the issue: Hunter v. Southam Inc., supra, at p. 155; R. v. Simmons, [1988] 2 S.C.R. 495, at pp. 526-28. \"[T]he standard of review of what is ‘reasonable’ in a given context must be flexible if it is to be realistic and meaningful\": McKinlay Transport Ltd., supra, at p. 645 (per Wilson J.). [Emphasis added.]", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-10", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 21–22", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is against this backdrop that the language of s. 99(1) (f) of the Customs Act must be understood and the actions of the police officer who stopped and searched the appellants' vehicle weighed. In reaching the conclusion that the appellants' ss. 8 and 9 rights were violated, the trial judge erred in placing the case in the context of arbitrary vehicle checks of the kind considered by this Court in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257. Although an analogy may be drawn between these cases and the instant appeal to the extent that in each the state's compelling interest either in highway safety and compliance in the case of the former, or in sovereignty, in the case of the latter, is relevant in the constitutional calculus, the random stop cases do not govern this appeal. Section 99(1) (f) of the Customs Act does and the trial judge erred by overlooking it.\n\nHaving failed to refer explicitly to s. 99(1)(f) of the Act, the trial judge further erred by overstating the necessary grounds for the officer's actions. Section 99(1)(f) authorized the detention and search of the appellants' vehicle on the basis of reasonable suspicion of smuggling or an attempt thereto. However, with respect to the officer's observation of bags bearing the name \"Wal-Mart\", Harper Prov. Ct. J. said ((1993), 143 N.B.R. (2d) 64, at p. 75), \"such a statement, without more, is hardly evidence supporting any probability of illegal smuggling\", and at the end of the same paragraph, referring to the officer's evidence that he saw liquor boxes and U.S. department store items, the trial judge said, \"[the evidence] is hardly more helpful to a court attempting to decide whether such statements without more indicate the probable presence of smuggled goods\" (emphasis added).", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-11", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 23–25", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "This passage, notably the repeated references to evidence \"without more\", demonstrates another problem with the trial judge's analysis. In assessing the officer's actions, Harper Prov. Ct. J. adopted a dissecting approach to evidence when, instead, he should have measured the totality of the circumstances.\n\nA sound approach to the assessment of evidence was canvassed by Doherty J.A. of the Ontario Court of Appeal in R. v. Simpson (1993), 12 O.R. (3d) 182, albeit in a different context, one in which the officer lacked statutory authority unlike in the present case. In determining whether or not a police officer's detention of a vehicle and its driver and passenger could be authorized by common law in the absence of statutory authority, Doherty J.A. reviewed U.S. jurisprudence on the doctrine of articulable cause and stated (at p. 202): \"These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.\"\n\nViewing the facts and circumstances as a whole, rather than isolating each in turn, is an approach which commends itself beyond the fact situation in Simpson. As Belleghem J. observed in R. v. Marin, [1994] O.J. No. 1280 (Gen. Div.), with respect to the facts (or \"indicators\") warranting a detention and search for narcotics under the Customs Act (at para. 16): The \"indicators\" are to be seen as a constellation, or cluster, leading or tending to a general conclusion. Looked at individually no single one is likely sufficient to warrant the grounds for the detention and seizure. The whole is greater than the sum of the individual parts viewed individually.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-12", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 26", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Turning to the facts in the present appeal, I recall Hoyt C.J.N.B.'s succinct summary in the Court of Appeal ((1995), 157 N.B.R. (2d) 195, at pp. 205-6): Three minutes before stopping Mr. Jacques' vehicle, Cst. Ward had received precise and reliable information of a single vehicle entry into Canada at an unmanned border point on a secondary paved road in a rural area. He went to the mouth of the road leading from the border where, calling on his experience of three years of police work in the area, he found a vehicle that, in his opinion, did not fit into the surroundings. He came to that conclusion after observing a covered half-ton truck with a cellular phone antenna and, more significantly, with no front licence plate, a requirement for New Brunswick vehicles, and an out-of-province plate at the rear of the vehicle. In such circumstances, in my opinion, Cst. Ward's actions were not arbitrary and he was acting on reasonable grounds when he stopped and searched Mr. Jacques' vehicle. The three-minute time span is particularly important because not only did Constable Ward receive the information of a single vehicle entry into Canada three minutes before stopping the appellants' car, but also Constable Ward estimated that at the point he stopped the appellants' vehicle, it was three minutes' drive from the border.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-13", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 27–28", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "To the extent that the officer's experience is relevant in the circumstances, it is noteworthy that at the time of trial, Constable Ward had been employed by the RCMP for three-and-a-half years and that the senior officer, in charge of the Customs and Excise Section in Woodstock, which covers the Perth-Andover detachment where Constable Ward was based, was also an RCMP officer. The senior officer testified that the double garage in the RCMP's office had been renovated to seal off one bay as a bondroom to accommodate the quantity of items seized. This evidence suggests no dearth of customs investigations.\n\nThe circumstances of this case are very different than those of R. v. Montour and Longboat (1992), 129 N.B.R. (2d) 361 (Prov. Ct.), in which the officer had \"no particular reason for stopping [the] vehicle\" (p. 365). It is significant that in Montour and Longboat, the officer did not purport to proceed under s. 99(1)(f) of the Act. He conducted an arbitrary check of the vehicle and found contraband tobacco; however, the detention exceeded the purposes justified in Hufsky, supra, and Ladouceur, supra, and the evidence was excluded.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-14", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 29–30", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court's decision in R. v. Wilson, [1990] 1 S.C.R. 1291, a companion case to Ladouceur, supra, is more apropos to the instant appeal than Montour and Longboat, supra. In describing the circumstance of the detention of a motor vehicle by a floating checkpoint, Cory J. said (at p. 1297): . . . the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from a hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping a vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of a rural community. In a case such as this, where the police offer grounds for stopping a motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As a result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. 9 of the Charter . In Wilson, there was arguably less information on which the officer could justify detention of the motor vehicle than in the present appeal. Nonetheless, the facts, when viewed in their entirety, justified the detention.\n\nIn the instant appeal, the precise and reliable information relayed to the officer, the location of the appellants' vehicle and his observations of it amply satisfied the requirements for detention and search under s. 99(1)(f) of the Act. It follows that the appellants were not arbitrarily detained contrary to s. 9 of the Charter .", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-15", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 31", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The circumstances which permitted the stop also permitted the search of the appellants' vehicle. Constable Ward's search met the criteria set out by this Court in R. v. Collins, [1987] 1 S.C.R. 265: it was authorized by law, namely s. 99(1)(f) of the Act; that law is itself reasonable as I have previously elaborated; and the search was carried out in a reasonable manner. On this third point, I can add nothing to the summary in the court below (at p. 207): Cst. Ward's actions amounted to a cursory search of the truck and its contents sufficient to confirm his suspicions. The circumstances of the search themselves do not indicate that it was unreasonable. Cst. Ward was not abusive or overbearing. Although Cst. Ward could have searched the truck in any event, he sought and received Mr. Jacques' permission to do so. He disturbed the contents of the truck only slightly and sufficiently to confirm his suspicions that an offence may have occurred. The appellants' right to be secure against unreasonable search and seizure was not violated. The appeal also fails on this ground.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-16", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 32", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Having concluded that there was no violation of the appellants' rights under ss. 8 and 9 of the Charter , I would dismiss the appeal. However, it is necessary to address first the failure of the Crown to adduce further evidence after the voir dire ruling, thereby necessitating an acquittal. The relevant jurisprudence was canvassed in this Court's decision in R. v. Power, [1994] 1 S.C.R. 601, concerning an appeal from a directed verdict of acquittal where the Crown, upon receiving an adverse interlocutory ruling, declined to introduce any other evidence. Writing for the majority, L'Heureux-Dubé J. stated (at p. 615): I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the \"clearest of cases\", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. The Crown's actions in the instant appeal fall far short of an abuse of process. According to the trial transcript, the other evidence which the Crown declined to adduce consisted of further police testimony, the expert evidence of a technician who analyzed the contents of the seized bottles to confirm the presence of alcohol and the evidence of the head of purchasing of the New Brunswick Liquor Control Commission to establish that the seized bottles were not sold in the province. The trial judge's ruling on the voir dire, however, rendered virtually meaningless any other evidence which the Crown might have been in a position to call and particularly that of the technician and the Liquor Control Commission official. It would be absurd to expect the Crown to have proceeded with the trial under those circumstances.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-17", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 32–35", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Its failure to do so does not affect the availability of a new trial.\n\nI have found that although the appellants were detained, their detention was not arbitrary and although their vehicle was searched, the search was not unreasonable. Accordingly, there was no violation of the appellants' rights under ss. 8 or 9 of the Charter .\n\nSince writing the above, I have had the benefit of the reasons of Justice Sopinka. I appreciate that the issue he raises has not been expressly addressed. I am satisfied that the excluded evidence, together with the evidence already of record, constitute circumstantial evidence such that, had the error not occurred and the excluded evidence been allowed, the verdict would not necessarily have been the same or, stated otherwise, that such evidence could reasonably result in a conviction. A new trial is warranted. The appeal should be dismissed. //Major J.// The following are the reasons delivered by\n\nMajor J. (dissenting) -- This appeal raises the narrow issue of whether an RCMP officer, acting under the authority of the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), had the requisite grounds to stop and search the appellants' vehicle away from the border. The appellants submit that the officer in question lacked reasonable grounds to suspect that the Customs Act had been or might be infringed, and that they were therefore arbitrarily stopped and subjected to an unreasonable search and seizure, in contravention of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . The respondent, relying on the decision of the Court of Appeal of New Brunswick, submits that the officer had the proper grounds to stop and search the vehicle in question. I. Relevant Statutory Provisions", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-18", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 36", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Customs Act , R.S.C., 1985, c. 1 (2nd Supp .) 11. (1) Subject to this section, every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, forthwith present himself at the nearest customs office designated for that purpose that is open for business and answer truthfully any questions asked by an officer in the performance of his duties under this or any other Act of Parliament. 99. (1) An officer may (f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening. 159. Every person commits an offence who smuggles or attempts to smuggle into Canada, whether clandestinely or not, any goods subject to duties, or any goods the importation of which is prohibited, controlled or regulated by or pursuant to this or any other Act of Parliament. II. Facts", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-19", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 37–39", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "On March 9, 1993, at 12:56 p.m., Constable Ward, an RCMP officer attached to the Perth-Andover, New Brunswick detachment, received a radio report informing him that a single vehicle had crossed the Canada-U.S. border at a nearby uncontrolled border crossing. It is worth noting that while the officer testified that the report was in respect of an “illegal entry into Canada”, the parties agreed before that there is no law prohibiting entry into Canada at an uncontrolled border crossing. The radio report originated from the U.S. Border Patrol. There was no description of the vehicle, its passengers, contents or licence plates.\n\nThe same officer proceeded to the intersection of Brown Road and the Trans-Canada Highway. Brown Road is a road which runs parallel to the border on the U.S. side, then turns across the border and intersects with the Trans-Canada Highway, approximately four to five kilometres from the border. Constable Ward testified that it would take approximately three minutes to drive from the border to the intersection. There are residences along, but no exits from Brown Road until one reaches the Trans-Canada Highway.\n\nThe constable testified that it took him three to five minutes to drive from where he received the radio report to the intersection. When he arrived at the intersection, he noticed two vehicles waiting to enter the Trans-Canada Highway. The first in line was a Chrysler Dynasty with New Brunswick licence plates, driven by a woman approximately 60 years old. The second vehicle was a Dodge pickup truck, with a Quebec licence plate in the rear, a cellular phone antenna, and a cap on the back. This vehicle was occupied by the appellants.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-20", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 40", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The constable stopped the appellants’ truck. The following portion from the transcript of his direct examination summarizes his reasons for stopping the appellants. Court: And they were both on the Brown Road as it approached the Trans-Canada. A: That’s correct, Your Honour. The first vehicle that I noticed was the Chrysler Dynasty and I noticed that there were New Brunswick plates on the car and there was one lady in the car, and she looked approximately I’d say sixty years old and it appeared at that time that the -- it didn’t look like as -- like your suspicious vehicle. It wasn’t something that sparked my attention, I would rather say, like it wasn’t like -- she didn’t look like somebody that would be smuggling or jumping the border. Court: What does -- do they have a look about them, Constable? A: Pardon. Court: Does a smuggler have a look about him? A: Well, the equipment used sometimes is rather uniform as to the way it happens. Sometimes they use four wheel drive or cars that are loaded down, like in the rear of the vehicle, you could notice that the vehicle is loaded down with merchandise sometimes if it's a large load, and . . . Court: And sometimes they’re smuggling and you don't see anything, isn’t that right? A: That’s -- that’s correct, yes. Every -- sometimes things go unnoticed. Court: Sometimes a nice 60 or 70 year old lady is maybe sitting on a nice load of hash under the front seat. A: It’s possible, Your Honour. . . . Q: And continue your narrative, please, Constable, what happened, you noted the two vehicles and described what you saw and what you did from that point, please? A: Okay, I, at this time, I was alone in my marked police car, so I had a choice which vehicle I could stopped.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-21", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 40", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "So what I did was I looked at both vehicles and I noticed that the truck had a cellular antenna on the roof and there was a cab on -- a cap on the pickup truck and there was no license plate in the front and I thought to myself, well, this vehicle it looks more likely because it doesn’t fit into the surroundings of the village. So when I got behind the truck, I noticed that the license plate was from Quebec, so what I -- I had a choice I could either take the car or the truck so I picked the truck because it was from out of the province and it likely wasn’t supposed to be in the area or didn’t fit into the area. Court: Why, why do you say likely it wasn’t supposed to be in the area, that makes it -- that’s a very peculiar statement for a person who’s giving me evidence. Why do you say that? A: Because the Chrysler Dynasty had New Brunswick license plates on it and it seemed like the vehicle was a local car and that the pickup truck was more likely from another area. It had a Quebec license plate on it and it didn't look like a familiar vehicle. Court: Did the Dodge Dynasty look like a familiar vehicle? A: No, it didn’t but it had New Brunswick plates on it.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-22", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "para 41", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "During cross-examination, the constable again stated that he stopped the appellants’ truck because he had a choice between the two vehicles and he picked the one he felt was more suspicious. A. My reasonable belief was the fact that there was an entry into Canada at an unmanned port and my immediate patrol to the area spotted two vehicles. I had a choice between one or the other and one vehicle had Quebec plates on it and one had New Brunswick plates on it, so I had to stop one or the other because the road coming out of Brown Road connects with the Trans-Canada and any vehicles that may have been on that road were suspects to this offence. Q. Why did you not stop both vehicles? A. Because one was from Quebec which is out of the province and as mentioned before it -- it -- the vehicle didn’t look like it was -- it looked like it was out of place and my grounds or my knowledge as a police officer came into effect at that point and I used all -- I used sound judgement to check well, if the vehicle is out of the province, then this is the one I’ll check. Q. So your sound police judgement is that vehicles that come out of province are suspect vehicles? A. What I’m saying is that the car from New Brunswick is -- was more likely to be from the local area than to be from Quebec. Q. What you said before was that a vehicle with an out of province license was suspect? Isn’t that what you said? Because it had an out of province license? A. What’s your question? Q. My question is in your sound police opinion, you feel that an out of province licensed vehicle is always the suspect vehicle? A.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-23", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 41–43", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "At an unmanned port, yes, if there -- if there’s other factors involved such as information received from the United States Border Patrol stating that there was an entry into Canada at that specific location. Then I have no choice but to gather enough evidence and belief that this may possibly be the vehicle. Q. So you thought this may possibly be the vehicle? A. Yes, I did. Q. You were suspicious of the vehicle? A. Yes, I was. Q. But you had nothing to indicate that this was the vehicle? A. No, I didn’t.\n\nConstable Ward approached the truck on foot and saw, through the window, several Wal-Mart bags. The only Wal-Mart stores in the area at the time were in the United States. He proceeded to ask the driver of the truck, the appellant Jacques, where he had been. Jacques replied, “I’m coming from across”. Jacques was asked what he had in the back of the vehicle, and replied that it was whisky. On request, the appellant Jacques opened the back of the truck. The constable noted the previously mentioned bags, as well as some boxes with liquor markings on them.\n\nThe constable then placed the appellants under arrest and confiscated their truck. The appellants were taken to the RCMP detachment in Perth-Andover, where they were permitted to contact counsel. They were subsequently searched and interviewed at Woodstock.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-24", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 44–45", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellants were charged with failing to report to customs and smuggling, under ss. 11(1) and 159 of the Customs Act . In Provincial Court ((1993), 143 N.B.R. (2d) 64), Harper Prov. Ct. J. found that the stopping of the appellants’ vehicle was based on the officer’s hunch, which was insufficient to constitute reasonable grounds. Relying on this Court's decisions in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257, the trial judge held that the stop was arbitrary, and thus a violation of s. 9 of the Charter . He said that in conducting his search, the officer was attempting to find evidence to justify his initial illegal detention of the appellants. Harper Prov. Ct. J. also held that the statements by Jacques and the subsequent consent to search the vehicle were given in violation of the Charter and the evidence gathered thereafter was inadmissible pursuant to s. 24(2) of the Charter . The Crown called no further evidence and the appellants were acquitted.\n\nThe acquittal was overturned by the Court of Appeal for New Brunswick: (1995), 157 N.B.R. (2d) 195. The Chief Justice held that the trial judge had erred in considering the stop only in relation to the common law power of the police to perform random stops to investigate driving offences. He found that the stopping of the appellants’ vehicle was permitted under s. 99(1) (f) of the Customs Act . The Court of Appeal concluded that the officer had reasonable grounds to suspect a contravention of the Customs Act because the truck was on the road leading from the border and did not fit into the surroundings. III. Issues", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-25", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 46–48", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellants submit that the stop and search of their vehicle was an unreasonable search and seizure, and thus a violation of s. 8 of the Charter . Further, the appellants submit that they were arbitrarily detained, in violation of s. 9 of the Charter . These submissions both rest on what is the main issue in this case: whether Constable Ward suspected on reasonable grounds that the truck occupied by the appellants had been or might be in contravention of the Customs Act . IV. Analysis\n\nWhile two Charter rights are alleged to have been infringed in this case, they both center on the same issue, whether the RCMP had reasonable grounds to suspect that the truck in question had been or might be involved in a contravention of the Customs Act . The trial judge felt the officer did not have reasonable grounds, while the Court of Appeal had the opposite view.\n\nIf the officer did not have reasonable grounds for his suspicion, as required under s. 99(1)(f) of the Act, the detention of the appellants’ truck was arbitrary. Random stopping of vehicles was held to be a violation of s. 9 of the Charter in Hufsky and Ladouceur. In those cases, the violation of s. 9 was justified under s. 1 of the Charter , as the violation occurred pursuant to a valid statutory goal, i.e., highway safety. If the stop was arbitrary it cannot be authorized by the Customs Act , as that Act requires suspicion on reasonable grounds, and does not authorize random stops. It was common ground that the appellants were not violating any traffic laws, nor were they stopped for a safety inspection.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-26", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 49–50", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my opinion, the trial judge was correct in finding that the officer did not have reasonable grounds to stop the appellants. The Court of Appeal noted that the trial judge did not refer specifically to the requirements of s. 99(1)(f). While this is true, the trial judge clearly realized that the police require reasonable grounds to stop vehicles except under the authority provided by Hufsky and Ladouceur. He stated that the facts of the case did not “constitute reasonable grounds to suspect that [the appellants’ truck] may be carrying contraband goods” (p. 74).\n\nThe requirements of s. 99(1)(f) are not stringent, perhaps because of the obvious difficulties in controlling the long undefended border between Canada and the United States. The officer need only suspect, on reasonable grounds, that the vehicle in question is or might be involved in a breach of the Customs Act . I take the phrase “might be” in the section to mean merely that there is a possibility that an offence is taking place, not implying suspicion of a future offence. While the requirement is not stringent, there must be some connection between the factors relied on by the officer and the suspected breach of the Act. Without such a connection, customs officers would have power to stop arbitrarily. Had Parliament intended customs officers to have such power, it would have said so, and not enacted s. 99(1)(f).", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-27", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 51–52", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The case of R. v. Montour and Longboat (1992), 129 N.B.R. (2d) 361, while not concerned with s. 99(1)(f), is of assistance. There, a police officer stopped a van because it was an older vehicle bearing out-of-province plates. He had a “hunch” and “suspicion” about the van. Upon approaching the van, he spotted what appeared to be American tobacco products in the back of the van. The occupants were charged with a violation under the Excise Act. The trial judge found that the van had been arbitrarily stopped, and that the stop was not pursuant to the goals justified in Hufsky and Ladouceur. The trial judge found a violation of s. 9 and excluded the evidence under s. 24(2). The New Brunswick Court of Appeal overturned the decision (1994), 150 N.B.R. (2d) 7, but this Court restored the trial judge’s verdict, [1995] 2 S.C.R. 416.\n\nIn R. v. Simpson (1993), 12 O.R. (3d) 182, the Ontario Court of Appeal held that in the absence of statutory authority to stop a vehicle, stopping a vehicle for the purpose of determining if the occupants were involved in criminal activity can only be justified if the police have some “articulable cause” for the detention. The Court of Appeal held that there must be a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation. Of particular importance to this case, the Ontario Court of Appeal stated that a hunch based on intuition gained by experience cannot suffice as articulable cause. “[A]rticulable cause” is a standard equivalent to the requirements of s. 99(1)(f).", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-28", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 53–56", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case, the constable based his actions on factors similar to those relied on by the officer in Montour and Longboat. He listed a number of random factors which he said indicated that the vehicle was suspicious. The appellants’ vehicle was stopped, according to the officer, because of its proximity to the border, and the fact that it was a truck with a cellular telephone antenna and a cap on the back. The officer thought the fact that the appellants’ vehicle bore a Quebec licence plate was an important consideration. These factors, assessed individually or in concert, do not constitute reasonable grounds to suspect a contravention of the Customs Act .\n\nThe first factor, which the appellants’ vehicle shared with the New Brunswick licensed car, was that the vehicle was at a point the officer identified as being three minutes away from the border. The trial judge in the absence of evidence gave this factor little weight, as it required unwarranted assumptions about the speed of the vehicles in question.\n\nThe second factor was the type of vehicle driven by the appellants. The officer stated that he was suspicious because the vehicle was a truck with a cap on the back and a cellular phone antenna. He offered an opinion that smugglers commonly use four-wheel drive trucks or “loaded-down” cars but did not state the basis for this opinion. There was no evidence, for example, that the officer had arrested any smugglers using similar vehicles.\n\nThe third factor was the presence of a Quebec licence plate on the appellants’ truck. In my opinion, there was no articulable reason to suggest that vehicles from out of the province are more likely to be involved in an offence under the Customs Act .", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-29", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 57–59", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The arbitrary nature of the stop is evidenced by the officer’s testimony: he testified twice that he had a choice between the two vehicles found at the intersection, and that he had to stop one or the other. The officer stated that the appellants’ truck looked more likely to be involved in an offence than the other vehicle stopped at the intersection, the Dynasty, which had New Brunswick licence plates and was driven by a woman of approximately sixty years of age. The officer stated, “I had a choice I could either take the car or the truck so I picked the truck because it was from out of province and it likely wasn’t supposed to be in the area or didn’t fit into the area”.\n\nThe officer did not explain why a truck with a cellular phone antenna fit in less with the rural surroundings than did the Dynasty car which was also stopped at the intersection. In fact, he admitted that the Dynasty was not a “familiar” vehicle. Even assuming the officer was correct in concluding the appellants’ truck was not from the area, none of the officer’s evidence points to a reason why the appellants’ truck was likely to have been involved in a contravention of the Customs Act .\n\nConstable Ward never explained why the truck was the more likely of the two vehicles to have crossed the border. It should be remembered that there was no information as to the description, occupants, licence plates or contents of the vehicle that had crossed the border. It appears that any vehicle crossing at the uncontrolled border point trips an electronic signal, leading to the type of report relayed to Constable Ward. In his testimony, the police officer admitted that he “had nothing to indicate that this was the vehicle”.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-30", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 60–61", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "As mentioned above, there must be something that connects the vehicle to an alleged breach of the Customs Act for the requirements of s. 99(1)(f) to be satisfied. None of the factors listed by the officer have any connection with an infringement of the Customs Act , or any other law. It is unreasonable to suggest that because a vehicle is from Quebec, a neighbouring province, or even “not from the area”, it is more likely to be involved in an illegal activity.\n\nThe respondent cites R. v. Simmons, [1988] 2 S.C.R. 495, which held that people have a lower expectation of privacy when crossing the border, to argue that the search in this case was reasonable. At the same time, the respondent relies on s. 99(1)(f) as the authority for the search. In doing so, the respondent must be arguing that crossing the border, at least at an uncontrolled border crossing, can create a reasonable suspicion that an illegal activity is occurring. Without additional evidence, such as the existence of a manned border crossing nearby that was avoided, it is unreasonable to suggest that by performing a perfectly legal act one can become a suspect under the Customs Act . It is important to note that Simmons was concerned with whether a person undergoing a routine search in the customs office at a point of entry into Canada is detained for the purposes of s. 10( b ) of the Charter , and not with the grounds for searches under the Customs Act .", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-31", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 62–63", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Even if it is assumed, for the moment, that crossing the border provides “reasonable grounds” to suspect sufficient to ground a search under the Act, in this case there was nothing to indicate that the appellants’ truck had crossed the border, except that it was on Brown Road, a coincidence which the truck shared with at least one, and possibly other, vehicles. The fact that a vehicle has Quebec plates rather than New Brunswick plates is not an indication that the vehicle has likely just crossed the border from the United States. In fact, it is arguable that a resident of the area would be more likely to be aware of the presence of an uncontrolled border crossing in the neighbourhood. In any event, the officer admitted that he did not know if the appellants’ vehicle had, in fact, crossed the border.\n\nThat there is nothing illegal per se about crossing the border at an uncontrolled checkpoint is significant. Section 99(1)(f) refers to a suspicion on reasonable grounds that a contravention of the Customs Act or its regulations has occurred or might be occurring. Even if the truck could have been identified as the vehicle which had just crossed the border, there was still nothing to indicate that a violation of the Customs Act had occurred.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-32", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 64–65", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The constable acted on a hunch based on his experience in this case, a fact recognized by the Court of Appeal. At p. 205, Hoyt C.J.N.B. refers to actions of Constable Ward as follows: Three minutes before stopping Mr. Jacques’ vehicle, Cst. Ward had received precise and reliable information of a single vehicle entry into Canada at an unmanned border point on a secondary paved road in a rural area. He went to the mouth of the road leading from the border where, calling on his experience of three years of police work in the area, he found a vehicle that, in his opinion, did not fit into the surroundings. He came to that conclusion after observing a covered half-ton truck with a cellular phone antenna and, more significantly, with no front licence plate, a requirement for New Brunswick vehicles, and an out-of-province plate at the rear of the vehicle. [Emphasis added.]\n\nThe “precise and reliable information” referred to by the appeal court was a report that a single vehicle had crossed the border at Four Falls, New Brunswick. There was no evidence regarding type, model, or colour of the vehicle, nor was there any information about licence numbers or province.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-33", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 66–67", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Basing a detention on “experience as a police officer” is precisely the justification that was disapproved in Simpson and Montour. The experience of police officers should not be discounted in evaluating grounds to stop and search a vehicle. However, allowing police to exercise their considerable powers of detention and arrest based on such experience has the potential to permit ex post facto justification of police action. It is of some significance that here the peace officer’s experience was in general police work as an RCMP constable and not as a regular customs official. In assessing the constable’s experience it should not be overlooked that he believed crossing the border at an uncontrolled border crossing was illegal, which it is not. That mistake could have influenced his actions.\n\nBecause there were no reasonable grounds for the detention of the appellants in this case, they were arbitrarily detained, in contravention of s. 9 of the Charter . The search was without warrant, and thus a prima facie unreasonable search: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145. To be reasonable, a warrantless search must be authorized by law, the law must be reasonable, and the search carried out must be reasonable: see R. v. Collins, [1987] 1 S.C.R. 265. As mentioned, s. 99(1)(f) does not authorize a warrantless search unless the officer has reasonable grounds to suspect that a vehicle has contravened the Act. So in this case, where such grounds were absent, there is no legal authority for a warrantless search. For this reason, s. 8 was breached.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-34", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 68–71", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "It remains to determine whether the evidence, which consisted of the contents of the truck and the personal effects of the appellants, should be excluded under s. 24(2) of the Charter . The Court of Appeal did not deal with this issue, as they found that no breach of the Charter had occurred.\n\nThe trial judge held that the admission of the evidence would render the trial unfair. Despite the fact that it was “real” evidence, the trial judge felt that it would not have been obtained but for the breach of the appellants’ Charter rights. On the authority of R. v. Mellenthin, [1992] 3 S.C.R. 615, the trial judge excluded the evidence.\n\nThis case is similar to Mellenthin. In that case, the police stopped a car at a check stop. The police, without grounds to search the car, asked the driver to open a bag, which was found to contain narcotics. In this case, the police stopped the appellants without reasonable grounds, and requested that the driver open up the rear of the truck. In Mellenthin this Court found that the evidence would not have been found but for the accused’s participation, brought on by a breach of his Charter rights. The evidence was excluded.\n\nEven if I disagreed with the trial judge on the effect of the evidence on the fairness of the trial, his decision should be upheld. The test is not one of correctness. In R. v. Duguay, [1989] 1 S.C.R. 93, it was held that a trial judge’s decision regarding s. 24(2) should not be overturned absent an error as to the applicable principles of law or a finding that is unreasonable. The trial judge was not in error as to the applicable principles, and his finding was not unreasonable.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-35", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 72–75", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The evidence would not have been found but for the Charter breach. R. v. Burlingham, [1995] 2 S.C.R. 206, held such evidence would affect trial fairness if admitted, notwithstanding the fact that it is real evidence. Based on Mellenthin and Burlingham, the trial judge was correct in excluding the evidence.\n\nThe trial judge did not comment on the second and third Collins categories. In my opinion the breach of the Charter was not serious, given the officer’s apparent good faith, and the fact that he thought he had some basis (albeit insufficient) for stopping the appellants.\n\nIn assessing the third category, the effect on the reputation of the administration of justice, it is of interest that the offence alleged is not a crime of violence or loss of property. However, smuggling contraband such as alcohol is a serious offence.\n\nThe seriousness of the alleged crime notwithstanding, this offence was not demonstrated on the facts. The actus reus is failing to report to the nearest customs office. It was conceded, as it had to be, that the appellants had not driven past any customs offices, nor were they driving away from the nearest customs office. The officer arrested the appellants before they had a chance to report to customs as required. An analogy might be a person being arrested in the hallway between an airplane off-ramp and the customs office and charged for failing to report to customs before he or she had a chance to do so.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-1425-36", + "doc_type": "caselaw", + "act_code": "[1996] 3 SCR 312", + "act_short": "Jacques", + "act_name": "R. v. Jacques", + "section": "", + "citation": "R. v. Jacques, [1996] 3 SCR 312", + "marginal_note": "paras 76–78", + "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In summary, the trial judge was correct in finding that the RCMP officer had no reasonable grounds to suspect that the truck driven by the appellants had contravened the Customs Act . Because of this, the detention of the appellants was arbitrary, in violation of s. 9 of the Charter . In addition, the subsequent search was unreasonable and violated s. 8 of the Charter . Lastly, the trial judge did not make an error as to the applicable principles of law under s. 24(2), nor was his finding unreasonable.\n\nSince writing the above reasons I have reviewed the reasons of Justice Sopinka and agree with him.\n\nThe appeal should be allowed. Appeal dismissed, Sopinka and Major JJ. dissenting.", + "current_to": "1996-10-03", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" + }, + { + "id": "scc-2198-1", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 1–4", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "The issue in this case is whether the appellant may, in the course of an action under s. 135 of the Customs Act , R.S.C. 1985, c. 1 (2nd Supp .) (“CA”), avail himself of the right against self-incrimination guaranteed by s. 11( c ) of the Canadian Charter of Rights and Freedoms .\n\nSection 11(c) provides that a “person charged with an offence” cannot be compelled to be a witness “in proceedings against that person in respect of the offence”. At the conclusion of the hearing, we were all of the opinion that the appellant in this case is not a “person charged with an offence” within the meaning of s. 11 of the Charter . The Court therefore dismissed his appeal, stating that the reasons would follow at a later date. Here are those reasons. II Facts and Judicial History\n\nOn June 25, 1996, a customs officer demanded, by way of a written notice served pursuant to s. 124 of the CA, that the appellant pay $315,458, that is, the deemed value of the goods he allegedly attempted to export by making false statements. This set in motion the process commonly referred to as “ascertained forfeiture”.\n\nThe appellant subsequently exercised the recourse provided for in s. 129 of the CA, requesting that the respondent review the customs officer’s decision. He submitted his representations to the respondent. The respondent upheld the demand for payment on the ground that the goods had not been reported in accordance with ss. 95 and 153(a) and (c) of the CA. According to the respondent, the goods in question were stolen automobiles.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-2", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 5–8", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "On September 25, 2001, the appellant appealed the respondent’s decision by way of an action, pursuant to s. 135 of the CA. He asked that the respondent’s decision be varied and replaced by a judgment cancelling the notice demanding payment. He also contested the constitutional validity of a number of provisions of the CA.\n\nBefore filing a defence, the respondent filed a notice of motion for the purpose of examining the appellant for discovery pursuant to Rule 236(2) of the Federal Court Rules, 1998, SOR/98‑106 (“FCR”). The appellant contested the motion on the ground that it would violate his right against self-incrimination under s. 11( c ) of the Charter .\n\nIn an interlocutory judgment dated December 11, 2001, Prothonotary Morneau allowed the respondent’s motion ([2001] F.C.J. No. 1865 (QL), 2001 FCT 1361). In his view, the appellant could not rely on the protection afforded by s. 11( c ) of the Charter because the appellant was not a person charged with an offence in a penal proceeding. On the contrary, the appellant was a plaintiff in a civil action and could hardly be characterized as a “person charged with an offence”. The prothonotary also found it inconceivable that a plaintiff such as the appellant could avoid submitting to an examination for discovery when the adverse party demanded one.\n\nOn January 28, 2002, Blais J. of the Federal Court dismissed the appeal and affirmed the prothonotary’s decision ((2002), 216 F.T.R. 218, 2002 FCT 85). He agreed with the prothonotary that a notice of ascertained forfeiture is not penal in nature and held that the appellant could not benefit from the protection of s. 11( c ) of the Charter . However, Blais J. did mention that he found it strange that an appeal from a Minister’s decision should be by way of an action.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-3", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 9–13", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "On April 3, 2003, the Federal Court of Appeal affirmed Blais J.’s decision ((2003), 310 N.R. 235, 2003 FCA 176). Létourneau J.A., writing for the court, concluded that the forfeiture of property pursuant to the CA is not equivalent to a “charge” that would attract the application of s. 11 of the Charter .\n\nLétourneau J.A. considered that, in a voluntary reporting system in taxation and customs matters, the purpose of seizure and forfeiture proceedings and the other sanctions is to regulate the conduct of taxpayers with a view to preventively ensuring compliance with tax legislation. These proceedings are thus administrative in nature.\n\nLétourneau J.A. acknowledged the severity of the sanction. However, it was his opinion that the forfeiture of property, or of an amount equal to its value, in response to a contravention of the CA, does not constitute a true penal consequence within the meaning of s. 11 of the Charter . Létourneau J.A. relied on R. v. Wigglesworth, [1987] 2 S.C.R. 541, in this regard.\n\nLétourneau J.A. found it “surprising” and “puzzling” that an appeal from a Minister’s decision must be by way of an action. Nevertheless, since this was the procedure established by Parliament, he maintained that the FCR’s provisions pertaining to ordinary actions applied.\n\nAdopting a text-based approach here, Létourneau J.A. regarded the appellant as a plaintiff in an action in which the respondent was the defendant. The appellant was therefore not a “person charged with an offence” in this proceeding. He was not being sued, nor was he being prosecuted. In fact, he himself was the “poursuivant” (“prosecutor”, or plaintiff) in the civil law sense of the word.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-4", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 14–16", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "Létourneau J.A. thus concluded that the proceeding initiated by the appellant could not result in any conviction, fine or penal consequence that would make him a “person charged with an offence” within the meaning of s. 11 of the Charter .\n\nThe Court of Appeal therefore dismissed the appellant’s appeal, but without prejudice to his right to contest the constitutional validity of the legal process for reviewing and appealing the Minister’s decision in his main action. III Relevant Constitutional and Legislative Provisions\n\nCanadian Charter of Rights and Freedoms 11. Any person charged with an offence has the right . . . (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; . . . Customs Act , R.S.C. 1985, c. 1 (2nd Supp .) 124. (1) Where an officer believes on reasonable grounds that a person has contravened any of the provisions of this Act or the regulations in respect of any goods or conveyance, the officer may, if the goods or conveyance is not found or if the seizure thereof would be impractical, serve a written notice on that person demanding payment of (a) an amount of money determined under subsection (2) or (3), as the case may be; or (b) such lesser amount as the Minister may direct. . . . 135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. (2) The Federal Court Act and the Federal Court Rules applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. 160.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-5", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 16–18", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "Every person who contravenes section 12, 13, 15 or 16, subsection 20(1), section 31 or 40, subsection 43(2), 95(1) or (3), 103(3) or 107(1) or section 153, 155 or 156 or commits an offence under section 159 or 159.1 (a) is guilty of an offence punishable on summary conviction and liable to a fine of not more than fifty thousand dollars or to imprisonment for a term not exceeding six months or to both that fine and that imprisonment; or (b) is guilty of an indictable offence and liable to a fine of not more than five hundred thousand dollars or to imprisonment for a term not exceeding five years or to both that fine and that imprisonment. . . . Federal Court Rules, 1998, SOR/98‑106 236. . . . (2) Subject to subsection (3), a defendant may examine a plaintiff at any time after the statement of claim is filed. IV Issue\n\nThe issue in this case is whether Rule 236(2) of the FCR violates s. 11( c ) of the Charter by requiring a plaintiff in an action under s. 135 of the CA to submit to an examination for discovery. V Analysis A. Is the Appellant a “Person Charged With an Offence” Within the Meaning of Section 11 of the Charter ?\n\nSection 11( c ) of the Charter reads as follows: 11. Any person charged with an offence has the right . . . (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; 11. Tout inculpé a le droit : . . . c) de ne pas être contraint de témoigner contre lui-même dans toute poursuite intentée contre lui pour l’infraction qu’on lui reproche;", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-6", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 19–24", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Wigglesworth, supra, at p. 554, Wilson J., writing for the majority, interpreted the expression “person charged with an offence” to limit its application to “public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences”. She stated that a matter falls within s. 11 of the Charter where, first, by its very nature it is a criminal proceeding or, second, a conviction in respect of the offence may lead to a true penal consequence (Wigglesworth, at p. 559).\n\nSection 124 of the CA must therefore be considered in light of these two tests. (1) Does Section 124 of the CA Provide for a Penal Proceeding?\n\nWhen a matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, it falls, by its very nature, within s. 11 of the Charter . This is clearly true of federal prosecutions under the Criminal Code , R.S.C. 1985, c. C‑46 , and of prosecutions of quasi-criminal offences under provincial legislation.\n\nBy contrast, proceedings of an administrative — private, internal or disciplinary — nature instituted for the protection of the public in accordance with the policy of a statute are not penal in nature (Wigglesworth, supra, at p. 560).\n\nA distinction must therefore be drawn between penal proceedings on the one hand and administrative proceedings on the other. Only penal proceedings attract the application of s. 11 of the Charter .\n\nTo determine the nature of the proceeding, the case law must be reviewed in light of the following criteria: (1) the objectives of the CA and of s. 124 thereof; (2) the purpose of the sanction; and (3) the process leading to imposition of the sanction. (i) Objectives of the CA and of Section 124", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-7", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 25–29", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "The objectives of the CA are to regulate, oversee and control cross-border movements of people and goods. As Dickson C.J. stated in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 528: “It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role.” To this end, the CA provides for the collection of duties and taxes on imported goods.\n\nThe attainment of these objectives depends on the effectiveness of the voluntary or self-reporting system provided for in the CA. To enforce the CA, Parliament has implemented civil and penal mechanisms.\n\nThe civil mechanisms include the seizure as forfeit of goods and conveyances (s. 110 of the CA), the demand by written notice or “ascertained forfeiture” (ss. 124 to 126 of the CA), and the imposition of administrative penalties (ss. 109.1 to 109.5 of the CA). The penal mechanisms, properly so called, are provided for in ss. 160 and 161 of the CA.\n\nThe offence imputed to the appellant, that he made false statements (ss. 95 and 153(a) and (c) of the CA), may give rise to a notice demanding payment (s. 124 of the CA), to criminal prosecution by way of summary conviction or indictment (s. 160 of the CA), or to both a demand for payment and criminal prosecution. On this basis, the appellant argues that a distinction as regards the nature of the imputed offence cannot be drawn based solely on the respondent’s choice of proceeding (civil or penal). Thus, since the offence may have penal consequences, it must be considered penal in nature.\n\nThis argument must be rejected.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-8", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 30–32", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "As stated by McLachlin J. (as she then was) in R. v. Shubley, [1990] 1 S.C.R. 3, at pp. 18‑19: “The question of whether proceedings are criminal in nature is concerned not with the nature of the act which gave rise to the proceedings, but the nature of the proceedings themselves” (emphasis added).\n\nIn the case at bar, the fact that the false statements could result in criminal prosecution does not in itself mean that a notice of ascertained forfeiture can properly be characterized as a penal proceeding. The fact that a single violation can give rise to both a notice of ascertained forfeiture and a criminal prosecution is irrelevant. The appropriate test is the nature of the proceedings, not the nature of the act.\n\nCameron J.A. of the Saskatchewan Court of Appeal stated the following (quoted with approval in Wigglesworth, supra, at p. 566): A single act may have more than one aspect, and it may give rise to more than one legal consequence. It may, if it constitutes a breach of the duty a person owes to society, amount to a crime, for which the actor must answer to the public. At the same time, the act may, if it involves injury and a breach of one’s duty to another, constitute a private cause of action for damages for which the actor must answer to the person he injured. And that same act may have still another aspect to it: it may also involve a breach of the duties of one’s office or calling, in which event the actor must account to his professional peers. (R. v. Wigglesworth (1984), 31 Sask. R. 153, at para. 11) (ii) Purpose of the Notice of Ascertained Forfeiture", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-9", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 33–37", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "In principle, ascertained forfeiture is a civil collection mechanism. It is used where it would be difficult or even impossible to seize goods in respect of which a customs officer believes on reasonable grounds that an offence has been committed. In such cases, rather than seizing the goods as forfeit (an in rem proceeding), the officer may demand payment of an amount of money that is determined according to the value of the goods in question.\n\nIn the instant case, the appellant submits that the purpose of ascertained forfeiture, like that of a criminal prosecution, is to punish the offender in order to produce a deterrent effect and redress a wrong done to society.\n\nThis argument must fail for three reasons.\n\nFirst, the purpose of a forfeiture mechanism is to ensure compliance with the CA by giving customs officers a timely and effective means of enforcing it. This mechanism is not designed to punish the offender. If the offender were not the actual owner of the seized property, he or she would not, in principle, be punished by the forfeiture thereof.\n\nA notice of ascertained forfeiture is served only where the property cannot be seized because, for example, it has already been exported. Only then is the offender, who is not necessarily the owner of the property, directly exposed to civil consequences. Thus, although ascertained forfeiture may in some cases have the effect of “punishing” the offender, that is not its purpose.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-10", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 38–42", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, it is true that ascertained forfeiture is intended to produce a deterrent effect. This is completely understandable in a self-reporting system. Fraud must be discouraged, and offences punished severely, for the system to be viable. However, actions in civil liability and disciplinary proceedings, which are also aimed at deterring potential offenders, nevertheless do not constitute criminal proceedings.\n\nThird, there is nothing that would indicate that the objective of ascertained forfeiture is to redress a wrong done to society. For example, s. 124 of the CA does not in any way take into account the principles of criminal liability or sentencing. I will address this point in greater detail in the next section. (iii) The Ascertained Forfeiture Process\n\nAscertained forfeiture involves a four-step administrative process.\n\nFirst, under s. 124 of the CA, a customs officer must have reasonable grounds to believe that a provision of the CA has been contravened. Once this precondition has been met, and once it has been established that it would be difficult to seize the goods and conveyances related to the customs offence, the officer may demand that the offender pay an amount of money equal to the value of the goods.\n\nSecond, the person to whom a notice of ascertained forfeiture applies has 90 days to ask the Minister to review the customs officer’s decision (s. 129(1)(d) of the CA). The Minister then serves notice of the reasons in support of the imposed sanction (s. 130(1) of the CA). Within 30 days after notice of the reasons is served, the alleged offender may make submissions and give evidence, in writing, to the Minister (ss. 130(2) and 130(3) of the CA).", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-11", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 43–47", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "Third, the Minister decides whether the ascertained forfeiture is valid (s. 131 of the CA). This decision “is not subject to review or to be . . . otherwise dealt with except to the extent and in the manner provided by subsection 135(1)” (s. 131(3) of the CA).\n\nFourth, and finally, the person who requested the Minister’s decision may, within 90 days after being notified of the decision, appeal by way of an action in the Federal Court (s. 135(1) of the CA).\n\nThis process thus has little in common with penal proceedings. No one is charged in the context of an ascertained forfeiture. No information is laid against anyone. No one is arrested. No one is summoned to appear before a court of criminal jurisdiction. No criminal record will result from the proceedings. At worst, once the administrative proceeding is complete and all appeals are exhausted, if the notice of ascertained forfeiture is upheld and the person liable to pay still refuses to do so, he or she risks being forced to pay by way of a civil action. (iv) Case Law\n\nSection 124 of the CA has not yet been interpreted by the courts. It will therefore be necessary to review similar cases in tax and customs matters to characterize the sanction provided for in this provision.\n\nFirst of all, in Canada v. Amway of Canada Ltd., [1987] 2 F.C. 131 (C.A.), the Minister of National Revenue instituted proceedings against the Amway corporation under s. 180(2) of the former Customs Act, R.S.C. 1970, c. C‑40. That provision, like s. 124 of the current Act, authorized the Minister to demand payment of an amount equal to the value of the exported property where the Act had been contravened.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-12", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 48–51", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "In that case too, the Minister wanted to examine the offender for discovery. The Federal Court of Appeal refused to authorize this, because the action to collect a fine in a civil proceeding constituted a penal action in which the defendant was a person charged with an offence. Consequently, Amway had the status of a “person charged with an offence” and was protected by s. 11( c ) of the Charter .\n\nThe decision was appealed to this Court, which reversed the decision of the Federal Court of Appeal on another ground. The Court ruled that a corporation cannot as such be a witness and therefore does not come within s. 11( c ) of the Charter . On the nature of proceedings under s. 180(2) of the former CA, Sopinka J., writing for the Court, said he was prepared to assume, “without deciding”, that the proceedings in question were such that Amway had the status of a “person charged with an offence” (R. v. Amway Corp., [1989] 1 S.C.R. 21, at p. 37).\n\nAccordingly, the appellant cannot rely on Amway in support of the conclusion that s. 124 of the current CA is penal in nature. First, s. 180(2) of the former CA dealt in a single provision with the Minister’s authority to require payment of a fine equal to the value of the unlawfully imported property and with the penal consequence of such an offence, that is, summary prosecution or prosecution on indictment.\n\nCivil and penal remedies were in a way intermingled in a single subsection. This inevitably gave the civil sanction a penal dimension. Unlike its predecessor, the new CA draws a clear distinction between seizure as forfeit (s. 124) and penal sanctions (s. 160). Moreover, in the case at bar, no criminal proceedings have been brought against the appellant.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-13", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 52–54", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "Next, the sanction provided for in s. 180(2) of the former CA was explicitly characterized as a “fine”. This term is more closely associated with the terminology used in penal matters. Section 124 of the current CA instead uses the more neutral expression “amount of money”.\n\nFinally, the remarks of Sopinka J. in Amway must not be taken out of context. Given his conclusion that a corporation cannot be a witness, his comments on the nature of the sanction imposed on Amway are necessarily restricted in scope.\n\nA number of judgments in tax matters support the conclusion that an administrative sanction is not penal in nature: see, inter alia, R. v. Yes Holdings Ltd. (1987), 48 D.L.R. (4th) 642 (Alta. C.A.); R. v. Luchuk (1987), 18 B.C.L.R. (2d) 301 (C.A.); Lavers v. British Columbia (Minister of Finance) (1989), 41 B.C.L.R. (2d) 307 (C.A.). In Time Data Recorder International Ltd. v. Canada (Minister of National Revenue), [1997] F.C.J. No. 475 (QL) (C.A.), at para. 12, Pratte J.A. correctly summarized the Canadian case law on the subject as follows: “It is common ground that seizures and forfeitures under the Customs Act are not criminal but civil proceedings and penalties.”", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-14", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 55–57", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "The case law of the United States Supreme Court has for quite some time been to the same effect. According to Brandeis J. in Helvering v. Mitchell, 303 U.S. 391 (1938), at p. 400, the forfeiture of goods or their value and any other monetary sanctions provided for under tax legislation are civil in nature, regardless of their severity: Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforcible by civil proceedings since the original revenue law of 1789. . . . In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions.\n\nFor these reasons, I find that the notice of ascertained forfeiture is not penal in nature, but is rather an administrative measure intended to provide a timely and effective means of enforcing the CA. (2) Does the Written Notice Demanding Payment Under Section 124 of the CA Constitute a True Penal Consequence?\n\nIn Wigglesworth, supra, at p. 561, Wilson J. wrote that “a true penal consequence which would attract the application of s. 11 [of the Charter ] is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity”. In her view, in the rare cases where the two tests conflict, the “by nature” test must give way to the “true penal consequence” test (Wigglesworth, supra, at p. 561).", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-15", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 58–61", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "Wigglesworth is one example of this sort of unusual situation. In that case, the Court held that proceedings before the Royal Canadian Mounted Police Service Court failed the “by nature” test. However, since the accused was liable to imprisonment for a term of one year, he faced a true penal consequence.\n\nIn the case at bar, the appellant, unlike Mr. Wigglesworth, does not face imprisonment should he be found to have contravened the CA.\n\nIt remains to be determined whether the payment of $315,458 demanded pursuant to s. 124 of the CA constitutes a fine that, by its magnitude, is imposed for the purpose of redressing a wrong done to society at large, as opposed to the purpose of maintaining the effectiveness of customs requirements. (i) Magnitude of the Fine\n\nThe appellant’s main argument in this regard is based on the magnitude of the amount claimed. He contends that $315,458 is six times greater than the maximum fine that could be imposed on him upon summary conviction under s. 160(a) of the CA and that it accordingly constitutes a true penal consequence.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-16", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 62–64", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "This argument is based on a false premise. There can be no doubt that the amount of $315,458 demanded from the appellant is greater than the sanction he would face in a summary conviction prosecution. However, if the appellant had been proceeded against by way of indictment, the maximum fine would have been $500,000 (s. 160(b) of the CA). In either case, moreover, the fine does not replace the ascertained forfeiture. These are two distinct consequences that are completely independent of each other. One of them, the fine, is clearly penal in nature and thus takes into account the relevant factors and principles governing sentencing; the other, being civil in nature and purely economic, is instead arrived at by a simple mathematical calculation.\n\nIn addition, forfeiture is an in rem proceeding in which the subject is the thing itself. In such a proceeding, the guilt or innocence of the owner of the forfeited property is irrelevant. The notice of ascertained forfeiture, the amount of which is established based on the estimated value of the property, is the necessary counterpart of this in rem proceeding. If the property is subsequently seized, the notice will be immediately cancelled (s. 125 of the CA). (ii) Redressing a Wrong Done to Society\n\nUnlike a criminal conviction, the demand by written notice stigmatizes no one.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-17", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 65–68", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "As has just been seen, the principles of criminal liability and sentencing are totally irrelevant when fixing the amount to be demanded. Such a notice does not result in a criminal record for either the offender or the owner of the property. Its purpose is neither to punish the offender nor to elicit societal condemnation. In short, the notice of ascertained forfeiture has neither the appearance nor the distinctive characteristics of a sanction intended to “redress a wrong done to society”.\n\nTo sum up, the notice of ascertained forfeiture does not lead to true penal consequences for the appellant. He cannot be characterized as a “person charged with an offence” within the meaning of s. 11( c ) of the Charter and therefore cannot benefit from its protection in this case. B. Is the Appellant Compelled to Be a Witness in Proceedings Against Him in Respect of an Offence With Which He Is Charged, Contrary to Section 11(c) of the Charter ?\n\nAs the appellant is not a “person charged with an offence” within the meaning of s. 11 of the Charter , there is in principle no need to consider the scope of s. 11(c). Nevertheless, it seems appropriate to do so, since the Federal Court of Appeal’s interpretation of this provision would unduly restrict its purpose.\n\nThree conditions must be met for a person charged with an offence to benefit from the protection against self-incrimination under s. 11( c ) of the Charter : (1) the person must be compelled to be a witness (2) in proceedings against that person (3) in respect of the offence.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-18", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 69–70", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this regard, the key passage from the Federal Court of Appeal’s decision reads as follows (at para. 10): In this case, the appellant is a plaintiff in an action in which, as section 135 requires, the Minister is the defendant. He is not a person charged with an offence in this proceeding. Nor is he being prosecuted or sued. In fact, he is the prosecutor in the civil law sense of the word. The proceeding he has initiated himself cannot result in any conviction, fine or penal consequence in the criminal or penal sense of the word, making him a person charged with an offence under the Charter ’s paragraph 11(c). The decision to carry out an ascertained forfeiture is already made and upheld by the Minister. The proceeding brought by the appellant to challenge the Minister’s decision is, when all is said and done, a proceeding to have the respondent’s claim and the action to collect this claim, the ascertained forfeiture, vacated.\n\nThe first condition presents no difficulties. It seems obvious that examining someone for discovery amounts to compelling that person to be a witness in proceedings against him or her. Rule 288 of the FCR provides that any part of an examination for discovery of an adverse party may be introduced into evidence at trial.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-19", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 71–74", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "As for the other two conditions, the decision of the Federal Court of Appeal, which is essentially based on the wording of the French version of s. 11(c), can be summarized as follows: since the appellant is a plaintiff, there is no poursuite (proceeding) against him. Thus, the appellant himself is the poursuivant (“prosecutor”, or plaintiff) and the proceeding was not brought in respect of the offence with which the appellant is charged, as the respondent had already made a decision. The purpose of the proceeding is, rather, to have the appellant’s debt to the respondent cancelled.\n\nWith respect, this interpretation of s. 11( c ) of the Charter risks being perceived as overly formalistic. I accordingly believe it would be preferable to address this aspect of the appeal as follows. (1) “Proceedings Against That Person”\n\nThe purpose of s. 11(c) is to protect a person charged with an offence against self-incrimination. This protection should not depend solely on the terminology associated with the procedure established by Parliament.\n\nIn the instant case, Parliament decided that an appeal from a decision of the Minister must be made by way of an action in the Federal Court (s. 135 of the CA). However, this choice of procedure does not alter the actual relationship between the parties.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-20", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 75–77", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Petit Robert (1990) defines the word “poursuite” as follows: [translation] “legal action taken against someone who has violated a law . . .” (p. 1501). In the case at bar, the customs officer, a representative of the state, served a notice of ascertained forfeiture on the appellant. There can therefore be no doubt that the service of the notice of ascertained forfeiture by the customs officer, who had reasonable grounds to believe that a provision of the CA had been contravened, constituted a “poursuite” against the appellant.\n\nFrom that moment, the appellant was required to follow the path set out by Parliament for contesting the proceeding against him. To this end, he asked the Minister to review the officer’s decision (ss. 129 and 131 of the CA) and he subsequently appealed the Minister’s decision to the Federal Court. Thus, although the appellant is designated a “plaintiff”, it is not he who actually initiated the “poursuite”. On the contrary, he is simply defending himself in a proceeding against him that was initiated by the respondent.\n\nIn the English version of s. 11( c ) of the Charter , the term “poursuite” is rendered as “proceedings”. The Oxford English Dictionary (2nd ed. 1989) defines “proceeding” as follows, at p. 545: “The instituting or carrying on of an action at law; a legal action or process; any act done by authority of a court of law; any step taken in a cause by either party” (emphasis added). It should be added that, in ss. 13 and 14 of the Charter , the word “proceedings” is rendered as “procédures” in the French version. In s. 24(2) of the Charter , “proceedings” is rendered as “instance”.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-21", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 78–82", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "This shows that the word “proceedings” has a much broader meaning than “poursuite” (see, for example, Markevich v. Canada, [2003] 1 S.C.R. 94, 2003 SCC 9, at paras. 23‑37), and it applies regardless of whether the individual seeking the protection of s. 11( c ) of the Charter is a “plaintiff” or a “defendant”.\n\nThus, although the appellant is designated a “plaintiff” in the Federal Court, it is nonetheless the respondent who initiated the proceeding (poursuite, procédure or instance) against the appellant. (2) “In Respect of the Offence”\n\nA literal interpretation of this expression implies that the proceeding must be in respect of the offence with which the appellant is charged. Relying on this assertion, the Federal Court of Appeal stated that the Minister’s decision was a thing of the past and that the purpose of the current proceeding was instead to release the appellant from his debt.\n\nFor this expression also, to understand its real meaning, the English and French versions of s. 11( c ) of the Charter must be read together. The expression “pour l’infraction qu’on lui reproche” is rendered in English as “in respect of the offence”. The key element of this provision is the existence of “some link” between the offence and the proceedings (see Markevich, supra, at para. 26).\n\nDickson J. (as he then was) stated the following in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39: The words “in respect of” are, in my opinion, words of the widest possible scope. They import such meanings as “in relation to”, “with reference to” or “in connection with”. The phrase “in respect of” is probably the widest of any expression intended to convey some connection between two related subject matters.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-22", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 83–87", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the case at bar, the offence imputed to the appellant consists in having made false statements contrary to ss. 95 and 153(a) and (c) of the CA. The offence gave rise to a proceeding (poursuite, procédure or instance) initiated by the respondent against the appellant. The respondent used a notice of ascertained forfeiture to demand payment of an amount of $315,458. There is accordingly no doubt that both the “proceeding” against the appellant and the appeal from the respondent’s decision are connected with the offence.\n\nIn Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 519, this Court stated that the expression “person charged with an offence” must be interpreted consistently in relation to all the paragraphs of s. 11 of the Charter .\n\nThe Federal Court of Appeal’s interpretation would unduly reduce the scope of s. 11(c). This would be true where a “person charged with an offence” was compelled to be a witness in proceedings against him or her simply because Parliament required the person to bring an action to contest a decision. The person’s status as a “plaintiff” would deprive the person of his or her constitutional rights.\n\nThis interpretation must therefore be rejected. VI Conclusion\n\nTo characterize the appellant as a “person charged with an offence” would have a significant impact on the entire body of legislation whose purpose is taxation and economic regulation. To recognize an alleged offender in these spheres as a “person charged with an offence”, even where he or she is not in fact charged, would undermine the effectiveness of the system and substantially increase the cost of administering it.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "scc-2198-23", + "doc_type": "caselaw", + "act_code": "2004 SCC 81", + "act_short": "Martineau", + "act_name": "Martineau v. M.N.R.", + "section": "", + "citation": "Martineau v. M.N.R., 2004 SCC 81", + "marginal_note": "paras 88–90", + "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this context, an analysis of s. 124 of the CA and its related provisions shows that the process they establish is not penal in nature and that the sanction provided for does not have true penal consequences within the meaning of Wigglesworth.\n\nTherefore, Rule 236(2) of the FCR does not violate s. 11( c ) of the Charter by requiring the appellant, as plaintiff in an action under s. 135 of the CA, to submit to an examination for discovery.\n\nFor these reasons, the Court dismissed the appeal from the bench. The respondent shall have his costs in this Court. Appeal dismissed with costs.", + "current_to": "2004-10-14", + "last_amended": "", + "history": "[2004] 3 SCR 737", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" + }, + { + "id": "fca-143136-1", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 1–4", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister of Citizenship and Immigration (the appellant or the Minister) appeals from the decision of Justice Michael L. Phelan of the Federal Court allowing the three respondents’ application for judicial review: 2014 FC 799. In their application, the respondents were contesting the validity of the decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB), which dismissed their appeal from the Refugee Protection Division (RPD).\n\nPursuant to subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act), the judge certified the following question: What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?\n\nThe respondents, who are citizens of Kosovo and Muslim, claim that their lives were threatened by an Islamic extremist group, the Wahhabis, and that the local police were unresponsive to their requests for help. The RPD rejected their claim on the basis that, among other things, they had not satisfied their burden of providing clear and convincing evidence to rebut the presumption that state protection would be forthcoming to them in Kosovo. The Canadian Association of Refugee Lawyers and the Canadian Council for Refugees were granted intervener status to support the respondents’ position.\n\nFor the reasons that follow, I would dismiss the appeal.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-2", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 5–6", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Bujar Huruglica is married to Ms. Hanife Huruglica. Sadije Ramadani is Ms. Huruglica’s mother. As mentioned, the respondents are all citizens of Kosovo and Muslim. Following Mr. Huruglica’s and Ms. Ramadani’s employment by U.S. government contractors, they and their families were allegedly threatened in Kosovo by Islamic extremists. They testified that the Kosovar police were not responsive to their concerns and that their attempts to complain about the threats they received were not taken seriously. The respondents fled Kosovo in January 2013. They traveled through the U.S., where they stayed on a visitor’s visa, and subsequently entered Canada, where they made their refugee claims in March 2013.\n\nAlthough the respondents testified in a straightforward manner, and the RPD did not note any significant inconsistencies or omissions in their testimony, the RPD rejected their claims on the basis that the respondents’ failure to make asylum claims while in the U.S. diminished the credibility that they had subjective fear. The country conditions documentary evidence before the RPD was found not to support the respondents’ allegation that they could not get adequate state protection in Kosovo. The RPD also noted that this documentation did not support the presence and power of Islamic extremists in Kosovo. As such, there was no persuasive evidence to establish that extremist Wahhabis – or any other extremists – had any significant influence over the police or other state institutions in Kosovo.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-3", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 7–9", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before the RAD, the respondents did not submit new evidence or seek an oral hearing. The respondents argued that the RPD’s credibility assessment was flawed, in that the RPD had failed to consider their explanation for not seeking protection in the U.S., and that it had ignored objective evidence of Islamic extremism in Kosovo. They further submitted that the RPD’s state protection analysis was deficient, as it ignored evidence of widespread corruption at all levels of government and of police inadequacy and misconduct.\n\nThe RAD indicated that there was no need to deal with the alleged error in the assessment of the respondents’ credibility, since in its view, the decision of the RPD in respect of state protection was reasonably open to the RPD and was sufficient to dismiss the respondents’ claims.\n\nTo reach its conclusion, the RAD determined the standard of review that applied to the appeal from the RPD’s decision. The respondents had made no submissions in that respect.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-4", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 10–12", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The RAD used the framework developed in Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399, 493 A.R. 89 [Newton] in its standard of review analysis. It found that the so-called Newton factors were better suited to the task than those set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], given that the RAD is an administrative appeal body rather than a reviewing court. The Newton factors are the following: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context.\n\nFirst, after a brief summary of some of the provisions dealing with the RPD and the RAD, the RAD concluded that: These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. (RAD Reasons at para. 13)\n\nSecond, the RAD noted that the issues before it were factual, and that these questions were generally reviewed on a deferential standard in both appellate courts and judicial review contexts: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 89, [2009] 1 S.C.R. 339.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-5", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 13–15", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Third, the RAD held that the purpose and provisions of the IRPA suggest that the RAD is empowered to bring finality to the refugee protection process, and that it may be entitled to show less deference to the RPD in order to do so. In particular, the RAD drew from paragraph 111(1)(b) and subsections 111(2), 171(c) and 162(2) of the IRPA.\n\nTurning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will unfrequently have this opportunity. This “suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand”: RAD Reasons at para. 20.\n\nThe last factor considered by the RAD was the need to limit the number, length and cost of appeals and preserve the economy and integrity of RPD proceedings. This, in the RAD’s view, was the factor that outweighed the others and suggested a deferential approach to questions of fact, especially when added to the fact that the RPD has the advantage of hearing witnesses. In this respect, the RAD adopted the Alberta Court of Appeal’s conclusion in Newton “that it is ‘singularly inefficient’ for a first-level hearing to be repeated at the appellate tribunal”: RAD Reasons at para. 21. The RAD so held despite the fact that its interpretation of the legislation as a whole would lead to the conclusion that little or no deference was to be shown to the RPD findings: RAD Reasons at para. 22.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-6", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 16–18", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having so concluded, the RAD therefore determined that the appropriate standard of review in this appeal was that of reasonableness, as defined in Dunsmuir and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. The RAD did not consider other alternatives, including the standard of palpable and overriding error set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].\n\nIn its decision on the merits of the appeal, the RAD closely examined the reasoning offered by the RPD, as well as the arguments presented by the respondents. The RAD noted that in addition to the objective evidence cited by the RPD, there was further objective evidence supporting the RPD’s conclusion on the adequacy of state protection. It noted that the objective evidence before the RPD was “mixed” , in that it set out deficiencies in the functioning of government institutions, but also reported on steps taken to improve the quality of law enforcement which had concrete results. This documentation also showed that the Kosovar population trusted its national police service and was largely satisfied with the police’s work.\n\nHaving noted that local failures to provide effective policing do not amount to a lack of state protection unless such failures are situated by documentary evidence within a broader pattern of state inability or refusal to extend protection, the RAD reviewed the actual efforts made by the respondents with their local police and concluded that it was not unreasonable for the RPD to expect the respondents to do more than make an initial approach like they had done.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-7", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 19–20", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "In his reasons for granting the application for judicial review, the judge held that the RAD’s conclusion as to its role on appeal was reviewable on the standard of correctness. He justified this choice based on the fact that this question of law is one of general interest to the legal system as a whole that had particular significance outside the refugee law context. He noted that “setting the standard of review is a legitimate aspect of the superior court’s supervisory role”, and that both the Alberta Court of Appeal and the Nova Scotia Court of Appeal applied the standard of correctness to review a similar issue: Newton; Halifax (Regional Municipality) v. United Gulf Developments Ltd., 2009 NSCA 78 [United Gulf]. The judge also mentioned that determining its standard of review fell outside the scope of the RAD’s expertise and experience, even if it involved the interpretation of the IRPA, the RAD’s home statute. For these reasons, the judge distinguished the case before him from that of Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, 2011 3 S.C.R. 654 [Alberta Teachers].\n\nThe judge then held that the RAD had erred in applying the standard of reasonableness to its review of the RPD decision. He noted that this standard was adopted to recognize the division of powers between the executive and the judiciary, a concept that is of “lesser importance and applicability” in this case, which involves an administrative appeal body: Federal Court Reasons at para. 43. In the judge’s view, the relationship between the RAD and the RPD “is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal”: Federal Court Reasons at para. 44.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-8", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 21–22", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge held that it may be appropriate to give deference to the RPD’s findings of fact when they turn on a witness’ credibility, but that this was not the case in the application before him. In respect of country conditions documentary evidence, the judge found that the RAD had equal or greater expertise than the RPD.\n\nHaving reviewed the relevant legislation and its purpose, and having compared the role of the RAD to that of the Immigration Appeal Division (IAD), the judge concluded as follows: [54] Having concluded that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a “palpable and overriding error”.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-9", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 23–24", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The questions to be determined are: a) What is the standard of review to be applied by this Court, particularly in respect of the certified question? b) What was the proper standard of review to be applied by the judge to the issue before him? c) Did the judge properly apply this standard, that is, did the RAD make a reviewable error in defining the “scope of [its] review when considering an appeal of a decision of the RPD”? I note that this issue is narrower than the question certified by the judge, as the RAD’s assessment in the present case did not involve a question of law, nor raise an issue relating to the credibility of oral evidence heard by the RPD.\n\nWith respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative of this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-10", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The most relevant provisions of the IRPA are reproduced here, while other provisions referred to in these reasons are included in Appendix A: Objectives and Application Objet de la loi Objectives — refugees Objet relatif aux réfugiés 3. (2) The objectives of this Act with respect to refugees are 3. (2) S’agissant des réfugiés, la présente loi a pour objet : (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; c) de faire bénéficier ceux qui fuient la persécution d’une procédure équitable reflétant les idéaux humanitaires du Canada; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; d) d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-11", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "groupe social en particulier, ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels et inusités; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain; (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; f) d’encourager l’autonomie et le bien-être socioéconomique des réfugiés en facilitant la réunification de leurs familles au Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and g) de protéger la santé des Canadiens et de garantir leur sécurit��; (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. h) de promouvoir, à l’échelle internationale, la sécurité et la justice par l’interdiction du territoire aux personnes et demandeurs d’asile qui sont de grands criminels ou constituent un danger pour la sécurité.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-12", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Appeal to Refugee Appeal Division Appel devant la Section d’appel des réfugiés Appeal Appel 110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection. 110 (1) Sous réserve des paragraphes (1.1) et (2), la personne en cause et le ministre peuvent, conformément aux règles de la Commission, porter en appel — relativement à une question de droit, de fait ou mixte — auprès de la Section d’appel des réfugiés la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile. Restriction on appeals Restriction (2) No appeal may be made in respect of any of the following: (2) Ne sont pas susceptibles d’appel : (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national; a) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile d’un étranger désigné; (b) a determination that a refugee protection claim has been withdrawn or abandoned; b) le prononcé de désistement ou de retrait de la demande d’asile; (c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded; c) la décision de la Section de la protection des réfugiés rejetant la demande d’asile en faisant état de l’absence de minimum de fondement de la demande d’asile ou du fait que celle-ci est manifestement infondée; (d) subject to the regulations, a decision of the Refugee Protection Division in respect of", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-13", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "a claim for refugee protection if d) sous réserve des règlements, la décision de la Section de la protection des réfugiés ayant trait à la demande d’asile qui, à la fois : (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and (i) est faite par un étranger arrivé, directement ou indirectement, d’un pays qui est — au moment de la demande — désigné par règlement pris en vertu du paragraphe 102(1) et partie à un accord visé à l’alinéa 102(2)d), (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division; (ii) n’est pas irrecevable au titre de l’alinéa 101(1)e) par application des règlements pris au titre de l’alinéa 102(1)c); (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1); d.1) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile du ressortissant d’un pays qui faisait l’objet de la désignation visée au paragraphe 109.1(1) �� la date de la décision; (e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased; e) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant la perte de l’asile; (f) a decision of the Refugee Protection Division", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-14", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection. f) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant l’annulation d’une décision ayant accueilli la demande d’asile. Procedure Fonctionnement (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d’audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s’agissant d’une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. Time limits Délais (3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations. (3.1) Sauf si elle tient une audience au titre du paragraphe (6), la section rend sa décision dans les délais prévus par les règlements.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-15", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Evidence that may be presented Éléments de preuve admissibles (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Exception Exception (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. (5) Le paragraphe (4) ne s’applique pas aux éléments de preuve présentés par la personne en cause en réponse à ceux qui ont été présentés par le ministre. Hearing Audience (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; (b) that is central to the decision with respect to the refugee protection claim; and b) sont essentiels pour la prise de la décision relative à la demande d’asile; (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-16", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas. Decision Décision 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 111 (1) La Section d’appel des réfugiés confirme la décision attaquée, casse la décision et y substitue la décision qui aurait dû être rendue ou renvoie, conformément à ses instructions, l’affaire à la Section de la protection des réfugiés. (1.1) [Repealed, 2012, c. 17, s. 37] (1.1) [Abrogé, 2012, ch. 17, art. 37] Referrals Renvoi (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (2) Elle ne peut procéder au renvoi que si elle estime, à la fois : (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and a) que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait; (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. b) qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-17", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Provisions that Apply to All Divisions Attributions communes Sole and exclusive jurisdiction Compétence exclusive 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. 162 (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie. Procedure Fonctionnement (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité. Refugee Appeal Division Section d’appel des réfugiés Proceedings Procédure 171 In the case of a proceeding of the Refugee Appeal Division, 171 S’agissant de la Section d’appel des réfugiés : (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal; a) la section avise la personne en cause et le ministre de la tenue de toute audience; (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions; a.1) sous réserve du paragraphe 110(4), elle donne à la personne en cause et au ministre la possibilité, dans le cadre de toute audience, de produire des éléments de preuve, d’interroger des témoins et de présenter des observations; (a.2) the Division is not bound by any legal or", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-18", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "technical rules of evidence; a.2) elle n’est pas liée par les règles légales ou techniques de présentation de la preuve; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; a.3) elle peut recevoir les éléments de preuve qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; a.4) le ministre peut, en tout temps avant que la section ne rende sa décision, sur avis donné à celle-ci et à la personne en cause, intervenir dans l’appel; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal; a.5) il peut, en tout temps avant que la section ne rende sa décision, produire des éléments de preuve documentaire et présenter des observations écrites à l’appui de son appel ou de son intervention dans l’appel; (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and b) la section peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation; (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-19", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 25–27", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "trial court. c) la décision du tribunal constitué de trois commissaires a la même valeur de précédent pour le tribunal constitué d’un commissaire unique et la Section de la protection des réfugiés que celle qu’une cour d’appel a pour une cour de première instance. [Emphasis added] [Je souligne]\n\nWhen reviewing a decision of the Federal Court on a judicial review application, this Court must determine if the judge chose the appropriate standard(s) of review for the issue(s) before him and if he applied it (them) correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, 2013 2 S.C.R. 559 [Agraira]. The latter involves “stepping into the shoes” of the judge. This Court’s focus will thus be on the decision of the RAD.\n\nThat said, the interveners particularly insisted that this Court should give the correct answer to questions that have been certified pursuant to subsection 74(d) of the IRPA. In their written and oral submissions, they relied on this Court’s decision in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paras. 30-37, [2015] 1 F.C.R. 335. However, since then, the Supreme Court has reversed this decision: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, 391 D.L.R. (4th) 644 [Kanthasamy]. The Supreme Court confirmed that despite the fact that a certified question may well be of general importance to the refugee law system, it is not a type of question that falls within the exceptions to the application of the standard of reasonableness: Kanthasamy at para. 44.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-20", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 28–29", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under subsection 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions.\n\nThe legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was in place before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on a correctness standard.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-21", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 30", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant strongly argues that the judge chose the wrong standard of review. The judge’s conclusion in that respect, as well as the precedents on which he relied (Newton and United Gulf), did not take into consideration all of the relevant Supreme Court of Canada decisions – especially those issued since 2011. Neither the judge nor the other two provincial courts of appeal turned their mind to the presumption that reasonableness applies to all questions of law arising from the interpretation of an administrative body’s home statute: see, for example, McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 [McLean]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; and Canadian National Railway v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 [CN v. Canada]. The Minister submits that the judge misconstrued the limited exceptions where the standard of correctness may be applied. I agree with these submissions.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-22", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 31–32", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "With all due respect to the judge and his colleagues in the Federal Court who have agreed with his selection of standard of review, I simply cannot conclude that a question of law involving the interpretation of an administrative body’s home statute so as to determine its appellate role has any precedential value outside of the specific administrative regime in question: see, among others, Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, [2014] F.C.J. No. 740; Yetna v. Canada (Citizenship and Immigration), 2014 FC 858, [2014] F.C.J. No. 906; Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913, [2014] F.C.J. No. 920 [Spasoja]; Bahta v. Canada (Citizenship and Immigration), 2014 FC 1245, [2014] F.C.J. No. 1278; Sow v. Canada (Citizenship and Immigration), 2015 FC 295, 252 A.C.W.S. (3d) 316; Bellingy v. Canada (Citizenship and Immigration), 2015 FC 1252, 260 A.C.W.S. (3d) 566. In fact, this logically relates to the argument put forth by the respondents and the interveners that it is not useful to look at decisions regarding the role of administrative appeal bodies other than those created under the IRPA: see also the Federal Court Reasons at para. 53.\n\nJust as legal principles applicable to cost awards and to time limitations have been found to fall within the expertise of the administrative bodies involved in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 25, [2011] 3 S.C.R. 471 and McLean at para. 21, defining the scope of its appellate function (or its standard of review) must be within the RAD’s expertise.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-23", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 33–36", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I cannot agree with the respondents’ position that the issue before the judge was a true jurisdictional question. The respondents framed the issue as involving the overlapping ability of both the RPD and the RAD to exercise their sole and exclusive jurisdictions in making findings of fact, law and mixed fact and law on the same set of evidence. However, the Supreme Court has warned against an expansive interpretation of what it deems to be “true questions of jurisdiction”, as well as questions of overlapping or competing jurisdiction between two administrative bodies. In my view, there is no question here that falls under the scope of such exceptions. I agree with the position taken by other judges of the Federal Court, such as Justice Luc Martineau in Djossou v. Canada (Citizenship and Immigration), 2014 FC 1080, [2014] F.C.J. No. 1130 [Djossou] and Justice Jocelyne Gagné in Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, [2014] F.C.J. No. 1116, that this is not a question of true vires.\n\nLastly, the Supreme Court made it clear in Kanthasamy that a question of general importance to the refugee law system does not fall under any of the other exceptions to the standard of reasonableness set out in Dunsmuir.\n\nI thus conclude that the judge erred in his selection of the standard of review applicable to the case before him, and that the proper standard ought to be that of reasonableness.\n\nBefore embarking on a statutory interpretation analysis, it is important to delineate what is in dispute before us from what is not.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-24", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 37–38", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is not disputed that the role of the RAD is not to review RPD decisions in the manner of a judicial review. All the parties agree that the process before the RAD is a “hybrid appeal”. The parties have also agreed that in respect of questions of law, the RAD should intervene if the RPD erred. That is, it must apply the correctness standard. In fact, and as explained below, one of the roles of the RAD is to develop a coherent national jurisprudence.\n\nWhat the parties disagree on is what a “hybrid appeal” means here, and what the RAD’s role is in respect of questions of fact and mixed fact and law.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-25", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 39–40", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "According to the Minister, the judge was wrong to the extent that his reasons can be interpreted as describing an appeal to the RAD as a de novo appeal. Indeed, the Minister submits that when the RAD does not hold a hearing and decides the issues raised by a claimant or the Minister on the basis of the record before the RPD (subsection 110(3) of the IRPA), the RAD is truly acting as an appellate court. Therefore, it should not carry out an independent assessment of the claim. Rather, the Minister says that the RAD should restrict its intervention to cases where the RPD made an unreasonable finding or, in the alternative, a palpable and overriding error: Appellant’s Memorandum of fact and law (MFL) at paras. 78-81. The Minister argues that the reasoning of the Court in Spasoja and its conclusion as to the role of RAD should be followed, because it preserves the integrity of the RPD process: Appellant’s MFL at para. 30. The Minister does not dispute that less deference, if any, would be owed in the relatively rare cases where the RAD holds a hearing pursuant to subsection 110(6) of the IRPA (see paragraph 110(6)(c) in particular). It is in that sense only that the appeal is a hybrid appeal in the Minister’s view.\n\nOn the other hand, the respondents and the interveners support the judge’s findings at paragraphs 54 and 55 of his reasons. In fact, in their view, a finding of error should not be a pre-condition for all appellate intervention by the RAD: Respondents’ MFL at para. 51.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-26", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 41–43", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "A few comments as to how I approached my task and what I consider necessary to include in my reasons are also warranted. In Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 at para. 45, 392 D.L.R. (4th) 351, I indicated that it is sometimes difficult to apply the standard of reasonableness to pure questions of statutory interpretation, and that further guidance from the Supreme Court would be welcomed as to the type of analysis that courts should perform in such cases.\n\nThe parties referred to the conflicting approaches and conclusions reached by Federal Court judges on the issue before us. Thus, to ensure that I understood the various approaches to interpreting the relevant provisions that were adopted below, I reviewed all such Federal Court decisions, as well as a good sample of RAD decisions dealing with the issue (especially following the judge’s decision in the present case).\n\nHowever, I gather from the Supreme Court decision in Kanthasamy that there is no real need for me to engage in a comparative analysis to explain whether or not an alternative statutory interpretation is reasonable. Section 25 of the IRPA was construed for many years by many administrative and judicial decision-makers differently from how it was ultimately construed by our highest Court in Kanthasamy. Despite this, the Supreme Court felt no need to refer to these alternative constructions before concluding that section 25 of the IRPA bore only one reasonable interpretation, and that the decision under review was therefore unreasonable.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-27", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 44–45", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "This approach appears to be particularly well suited to the question before us in the present appeal. I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers: Paul Daly, “Les appels administratifs au Canada” (2015) 93 Can. Bar Rev. 71 at 105 [Les appels administratifs au Canada]. Accordingly, the range of legally acceptable outcomes will necessarily be narrow. In fact, as will be explained, it is my view that the legislative intent is not ambiguous. The controversy in RAD and Federal Court decisions can be more accurately described as a disagreement over whether to import either the standard from a judicial review of an administrative action (Dunsmuir) or an appellate court’s review of a lower court decision (Housen) into the RAD’s review of an RPD decision.\n\nI also note that in this particular case, the RAD did not have the benefit of any submissions in respect of its appellate role, nor of a record which included the legislative evolution and history of the relevant IRPA provisions. Further, it appears that the RAD was one of the first, if not the first, administrative appeal bodies outside of Alberta to rely on the Newton factors. This was mentioned by the British Columbia Supreme Court in BC Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331 at para. 31, [2014] B.C.W.L.D. 966 [BC Society], where the B.C. Supreme Court declined to follow Newton.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-28", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 46–48", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I do not find the decision in Newton particularly useful. I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory interpretation requires an analysis of the words of the IRPA read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object (Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983)). The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD.\n\nThe principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision-makers (as set out in Dunsmuir at paras. 27-33) have no application here. Indeed, the role and organization of various levels of administrative decision-makers do not put into play the tension between the legislative intent to confer jurisdiction on administrative decision-makers and the constitutional imperative of preserving the rule of law.\n\nWith all due respect to the contrary view, it would also be inappropriate to import the considerations set out in Housen, since the adoption of the high level of deference afforded by appellate courts of law to lower courts of law on questions of fact and mixed fact and law was mainly guided by judicial policy: Housen at paras.16-17.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-29", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 49–52", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "When the legislator designs a multilevel administrative framework, it is for the legislator to account for considerations such as how to best use the resources of the executive and whether it is necessary to limit the number, length and cost of administrative appeals. As will be discussed, the legislative evolution and history of the IRPA shed light on the policy reasons that guided the creation of the RAD and the role it was intended to fulfil. These policy considerations are unique to the RPD and the RAD. Thus, one should not simply assume that what was deemed to be the best policy for appellate courts also applies to specific administrative appeal bodies.\n\nTo be clear, I am not saying that the standard of reasonableness will never apply in appeals to administrative appeal bodies. In fact, there are examples where the legislator clearly expresses an intention that such a standard be applied: see, for example, subsection 18(2) and section 33 of the Commissioner’s Standing Orders (Grievances and Appeals) Regulation, SOR/2014-289, adopted pursuant to the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10; subsection 147(5) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (see Appendix A). This last provision was reviewed and construed by this Court in Cartier v. Canada (Attorney General), 2002 FCA 384 at paras. 6-9, [2003] 2 F.C.R. 317.\n\nRather, what I am saying is that one cannot simply decide that this standard will apply on the basis of one’s own assessment of factors (e) and (f) listed in Newton (see paragraphs 10, 15 and 16 above). One must seek instead to give effect to the legislator’s intent.\n\nWith this in mind, I will now proceed with my statutory analysis, looking first at the relevant purpose and object of the IRPA.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-30", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 53–54", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The many objectives of the IRPA are expressly set out in subsection 3(2) of the IRPA (see paragraph 25 above). The Minister focuses particularly on paragraph 3(2)(e), which refers to the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This is obviously very relevant when one considers the functions of the RPD and the RAD. That said, one should always keep in mind that the very first objective of the IRPA (paragraph 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted. This may be what prompted Robert Thomas to write that decision-making in respect of refugee claims is “perhaps the most problematic adjudicatory function in the modern state”: Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Oxford: Hart Publishing, 2011) at 48, cited in Les appels administratifs au Canada at 95 fn 103.\n\nThe IRPA creates two distinct divisions of the IRB to deal with refugee claims. The RPD plays a primary role in the refugee claims determination process, for it must hold a hearing in respect of every refugee claim: subsection 170(b) of the IRPA. It must also determine in advance the issues that will need to be addressed at its hearing. At the hearing, the member of the RPD plays a crucial role, quite distinct from that of a judge. Most of the time, he or she questions the claimant before he or she is examined by his or her own counsel, or cross-examined by counsel for the Minister, if any.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-31", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 55–56", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The RPD is the final decision-maker in respect of all claims listed in subsection 110(2) of the IRPA. The respondents further point out that the RPD was in fact the final decision-maker in about 80% of the refugee claims assessed in 2013: Respondents’ MFL at para. 53; The Refugee Appeal Division: Presentation to the Toronto Regional Consultative Committee by Ken Atkinson (February 5, 2014), Appellant’s Appeal Book, Volume 1, Tab 7 at 68.\n\nWhen dealing with an appeal, the RAD has essentially the same powers as the RPD: see sections 162 and 171 of the IRPA. For example, the RAD has the same ability as the RPD to take “judicial notice of any facts that may be judicially noticed and of any other generally recognized facts, and information or opinion that is within its specialized knowledge”: subsection 171(b) of the IRPA. Nevertheless, there are a few important distinctions between the RAD and the RPD. First, the RAD will rarely hold a hearing: subsection 110(6) of the IRPA. Although it may consider any new documentary evidence submitted by the Minister, it can only accept new evidence as defined in subsection 110(4) from a refugee claimant (See Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. Moreover, 10% of its members, as well as its vice-president, must be lawyers or notaries: subsection 153(4) of the IRPA. When an appeal is heard by three members of the RAD, their decision has the same precedential value that an appellate court decision has for a trial court. Such a decision binds all RPD members, as well as any one-member panel of the RAD: subsection 171(c) of the IRPA.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-32", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 57–59", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The IRPA also provides for a similar two-level process in respect of other immigration matters. In particular, appeals from a number of first-level decision-makers are made to another IRB division: the IAD. The wording of paragraph 67(1)(a) of the IRPA, which describes when the IAD can intervene, is similar to that of paragraph 111(2)(a) (see Appendix A). However, I do not find it useful to say more about the IAD, because the cases discussing the IAD raised by the Minister are outdated: they are either old cases that were released before the IRPA came into force; or they are cases which were released after the IRPA came into force but which rely on the old cases. Both interpret language on when the IAD can intervene that is not current, and provide no analysis of the words “wrong in law or fact or mixed law and fact” found at subsection 67(1)(a).\n\nSections 110 and 111, reproduced above, deal with appeals from the RPD to the RAD. Subject to my comments with respect to paragraph 111(2)(b), I generally agree with the RAD’s finding that neither section 110 nor 111, nor the legislation as a whole, point to the need to show deference to the RPD’s findings of fact. As acknowledged by the RAD in this case, these provisions evidence the legislator’s intent that the RAD bring finality to the refugee claims determination process.\n\nIn particular, paragraph 111(2)(a) indicates that the RAD does not need to defer for factual findings. Paragraph 111(2)(a) does not distinguish between errors of law, fact or mixed fact and law. It simply requires that the decision of the RPD be “wrong in law, in fact or in mixed law and fact” (in French: “erronée en droit, en fait ou en droit et en fait”).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-33", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 60–61", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the hearing, the Minister argued that the wording of paragraph 111(2)(a) was such that it applied only to paragraph 111(1)(c), and not to paragraphs 111(1)(a) or (b). Thus, paragraph 111(2)(a) provides little guidance as to the role of the RAD when it confirms a RPD decision under paragraph 111(1)(a) or sets it aside by substituting “the determination that, in its opinion, should have been made” under paragraph 111(1)(b). I cannot agree. The effect of this argument is that the RAD would be forced to reach the appropriate outcome for the case (under one of paragraphs 111(1)(a), (b) or (c)) before it could choose the proper standard of review to apply to that case: it would be forced to put the cart before the horse.\n\nAlbeit in a different context, a similar approach was rejected by this Court in Cartier at paragraph 9. In that case, this Court noted that despite the awkward way the provision at issue was drafted, the applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal, thereby resulting in the release of an offender. I cannot see how this could be otherwise in the present case. Indeed, on appeal, the RAD must necessarily consider the RPD decision and the record available before determining how it should dispose of the matter, including whether it is preferable to dispose of the appeal in accordance with paragraph 111(1)(c) and subsection 111(2). The extent or nature of its review of the decision and its assessment of the record cannot depend on the ultimate conclusion that it will reach in this regard.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-34", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 62–64", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, subsection 111(2) is part of the context that must be examined as a whole to determine the legislative intent regarding the role of the RAD in all cases mentioned under subsection 111(1). This is especially so because paragraph 111(2)(b) expressly refers to paragraphs 111(1)(a) and (b).\n\nI also note that the Minister appears to suggest that the word “wrong” is synonymous or the equivalent to the word “unreasonable”: Appellant’s MFL at para. 80. Again, I cannot accept this argument. This is not the ordinary meaning of the word “wrong”, nor is it its customary meaning in a legal context.\n\nThe ordinary meaning of the word “wrong” is “not correct or true”, “incorrect”, “mistaken”: The Oxford English Dictionary, 3d ed., s.v. “wrong”. The French version “erronée” has the exact same ordinary meaning, that is, “fausse”, “incorrecte”, “inexacte”, “mal fondée”: Le nouveau petit Robert, 2006, s.v. “erroné”. This wording definitively points to the standard of correctness. In addition, the legislator’s intent to use the word “wrong” in its ordinary meaning is, in my view, supported by the legislative history, to which I will refer later.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-35", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 65–66", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the Minister’s position can only be based on the assumption that the legislator meant to apply one of the deferential standards of review applicable to findings of fact, be it in the context of a judicial review or of an appeal from a trial court. No such presumption applies here, as the legislator made it clear that the RPD is not entitled to err, be it in law, in fact or in mixed and fact and law. As mentioned earlier, it would make little sense to give the word “wrong” a different meaning depending on whether it relates to the words “in law”, “in fact” or “in law and in fact” used in paragraph 111(2)(a). This would be contrary to the most basic rule of statutory interpretation.\n\nFurthermore, it appears from a search of the federal legislation and regulations that the word “wrong”, as used in paragraphs 111(2)(a) and 67(1)(a) of the IRPA, has not been used in any other federal statute or regulation. By contrast, there are many examples of statutes and regulations that capture the standard of reasonableness through the use of words such as “reasonable” or “reasonably”. I gave an example of each at paragraph 50 above. Thus, the IRPA’s unique provisions were expressly crafted to give effect to the legislator’s particular intent in respect of this sui generis scheme.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-36", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 67–68", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the hearing, the Minister submitted that the most telling characteristic of the RAD’s appeal process is that in the vast majority of cases (including the matter before us), the RAD determines the appeal on the basis of the record of the RPD proceedings: subsection 110(3) of the IRPA. This, he submits, leads to the conclusion that the legislator intended that all findings of fact (and not only those involving the assessment of oral evidence) be reviewed on the standard of reasonableness or of palpable and overriding error. I need only use one example to illustrate why I disagree that this is not the only inference that can be drawn from subsection 110(3). The present appeal is based solely on the record available before the judge. Still, as mentioned earlier, once it has been ascertained that the judge chose the appropriate standard of review for the question before him, the Court “steps into the shoes” of the judge to assess if he correctly applied that standard. No deference is owed in that respect, although the Court will carefully consider the decision under appeal.\n\nAdmittedly, inasmuch as paragraph 111(2)(a) is relevant to the analysis, subsection 110(3) is also part of the context that must be considered. However, subsection 110(3) is simply not as determinative as the Minister’s argument above suggests.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-37", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 69–71", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I now turn to paragraph 111(2)(b). It provides that once an error has been identified (paragraph 111(2)(a)), the RAD may refer the matter back for redetermination with the directions that it considers appropriate only if it is “of the opinion” that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.\n\nThis also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.\n\nOne can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD’s findings of fact regarding the relative weight of testimonies and their credibility or lack thereof.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-38", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 72–74", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD.\n\nSimilarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings.\n\nThat said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-39", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 75–76", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before concluding my analysis of the wording and scheme of the IRPA, I will say a few words about another argument raised by the Minister that could in theory fit in this analysis, given that it may address the objective set out in paragraph 3(2)(a) of the IRPA. Without providing any evidence to support his argument, the Minister states that unless the RAD applies a standard involving a high level of deference to the RPD findings of fact, it would be impossible for the RAD to fulfill its mandate because it would be required to peruse an enormous amount of documentation.\n\nAs mentioned earlier, I reviewed a large sample of decisions of the RAD that applied the approach suggested by the judge in this case. The RAD members in question had chosen to do so even after other Federal Court decisions indicated that the standard of palpable and overriding error could be used to review the RPD’s findings of facts. I note in passing that I was impressed by the general quality of those decisions; this certainly bodes well for the future. That said, I saw no indication that the RAD has any difficulty fulfilling its mandate when conducting substantive reviews of appealed RPD decisions. Certainly, there is no mention of this in any of the decisions that followed the approach described by the judge in this matter. A few members of the RAD have decided to follow the approach suggested in Spasoja. I understand that this is mostly because they felt that it was easier to apply a standard that was already well defined, not because they did not have the time or the resources to conduct the substantive review of the documents on file that would be mandated if a less deferential standard were applied.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-40", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 77–79", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "In any event, and as indicated above at paragraphs 49 and 51, the number of appeals and the time and effort required on each appeal is for the legislator to consider. I find no indication in the wording of the IRPA, read in the context of the legislative scheme and its objectives, that supports the application of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law.\n\nAt this stage of my analysis, I find that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD: paragraph 111(2)(b) of the IRPA.\n\nI also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision-maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-41", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 80–83", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I will now look at the IRPA’s legislative evolution and history. Despite the relatively low weight generally given to legislative history, I agree with the Federal Court in Spasoja that on the issue before us, it is particularly instructive and simply impossible to ignore. As mentioned, I believe that both the legislative evolution and its history confirm the conclusion that I have reached at this stage of my analysis.\n\nAlthough much of what I will say here has been discussed in various decisions of the Federal Court (see, for example, Djossou at paras. 74-85 and Spasoja at paras. 32-38), it is worthwhile to set it out again, as it provides useful indications as to how the legislator envisioned the role of the RAD and how the two-tier administrative decision-making process was understood to provide a fair and more efficient process.\n\nFrom 1985 until the enactment of the IRPA, the determination of refugee claims was governed by sections 67-69.1 of the Immigration and Refugee Act, R.S.C. 1985, c. I-2. Refugee claims were decided by a quorum of two members of the Convention Refugee Determination Division, unless claimants consented to have their case determined by a single member. There was no appeal, and the only recourse was judicial review.\n\nBill C-11 (now the IRPA), which received Royal Assent on November 1, 2001, provided for the creation of a Refugee Appeal Division (the RAD) within the Immigration and Refugee Board. In 2007, a private Member’s bill (Bill C-280) was introduced to implement the provisions relating to the RAD (sections 110 and 111 particularly), but it never received Royal Assent.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-42", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 84–86", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Another Bill C-11, entitled the Balanced Refugee Reform Act, was introduced in March 2010. It proposed to bring the unproclaimed RAD provisions of the IRPA into force within two years of its Royal Assent. It also proposed changes to the existing RAD provisions, such that the RAD would have the power to accept new evidence in certain circumstances and the ability to hold a hearing in specified situations (subsections 110(4) and (6)). It received Royal Assent on June 29, 2010.\n\nIn February 2012, Bill C-31, entitled Protecting Canada’s Immigration System Act, was introduced. It proposed further changes to the RAD provisions; in particular, it proposed limitations on access to the appeal provided for in the IRPA by several categories of refugee claimants, and barred appeals on cessation and vacation decisions (see subsection 110(2) of the IRPA). It received Royal Assent on June 28, 2012.\n\nOn December 15, 2012, the 2010 and 2012 amendments came into force and the RAD was formally launched. As mentioned, although the legislative history is not in any way determinative and should not to be given undue weight as to the legislative intent (CN v. Canada at para. 47), it remains useful to consider statements of the Minister responsible for the legislation, as well as those of others directly involved in its development.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-43", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 87", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "When Bill C-11 was tabled, Joan Atkinson, Assistant Deputy Minister, noted that the introduction of single-member RPD panels was to be offset by the introduction of the claimants’ right of appeal before the RAD: Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 27 (May 17, 2001) at 1140 in Joint Book of Authorities (JBA), Part II, Vol. 1, Tab 10. Similarly, the Honourable Elinor Caplan, who was the Minister responsible for the bill, underlined that: The whole purpose [of the RAD] is to ensure that the correct decision is made ... Our expectation is that … the ability of the RAD to fix mistakes will give greater assurance to the Federal Court in the decision making at the IRB. In that way, we will see fewer cases actually given review at the Federal Court. (Standing Senate Committee on Social Affairs, Science and Technology, 37th Parliament, 1st Session, Issue 29 (October 4, 2001) in JBA, Part II, Vol. 1, Tab 11; emphasis added)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-44", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 88", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Peter Showler, former Chairman of the IRB, stated the following as to why it would be appropriate to reduce the number of members dealing with refugee claims from two to one: In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions. Appeals to the RAD will be in writing only and will be reviewed by experienced RPD decision-makers with the power to affirm the RPD decision, to set it aside and substitute their own decision, or to refer the matter back to the RPD for a rehearing on particular issues in exceptional cases where it might be necessary to hear additional evidence. We estimate the workload of the RAD will be about 8,000 to 9,000 cases per year, and we intend to equip the division with a corresponding level of staff and resources. It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD. However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-45", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 88–89", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "As I said to this committee before, we don’t see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well. […] So there’s a significant difference between them. We think the total result will end up the same as before. But as I’ve already indicated, we think we will have a better-quality decision-because we’ll have had two goes, two kicks, at the can. There’s not only been the original decision, but also a clear, authoritative, experienced review of that decision. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 5 (March 20, 2001) at 0915-20, 0925 in JBA, Part II, Vol. 1, Tab 6; emphasis added)\n\nMinister Elinor Caplan further stated that: Bill C-11 will create a new Refugee Appeal Division at the IRB to hear appeals on merit for decisions on refugee claims, rendering the system both faster and fairer by providing a mechanism to correct error in the first instance. […] Also I want to clarify that the RAD, the Refugee Appeal Division is not a second hearing. It is a review on merit of the hearing that took place at the Refugee Protection Division. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 22 (May 8, 2001) at 0845, 0935 in JBA, Part II, Vol. 1, Tab 8)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-46", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 90–91", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the second reading of the private Member’s bill presented in 2007, Member of Parliament Richard Nadeau referred to a number of systemic considerations justifying the establishment of the RAD, including the need for more efficiency. This particular need had been described as follows by the Canadian Council for Refugees: “[a] specialized appeal division for refugee matters can deal much more efficiently with unsuccessful claimants than the Federal Court… The refugee appeals division can do a better job of correcting errors of law and fact”: House of Commons Debates, 39th Parliament, 1st Session, No. 122 (March 2, 2007) in JBA, Part II, Vol. 1, Tab 15 at 7569.\n\nDuring the debate on the second reading of Bill C-11 on April 26, 2010, the Honourable Jason Kenney, then-Minister of Citizenship and Immigration, stated: The proposed new system would also include, and this is very important, a full appeal for most claimants. Unlike the appeal process proposed in the past and the one dormant in our current legislation, this refugee appeal division, or RAD, would allow for the introduction of new evidence and, in certain circumstances, provide for an oral hearing. (House of Commons Debates, 40th Parliament, 3rd Session, No. 033, Vol. 145 (April 26, 2010) at 1945 in JBA, Part II, Vol. 2, Tab 24; emphasis added)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-47", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 92", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Then, on May 4, 2010, Minister Kenney pointed out before the Standing Committee on Citizenship and Immigration: However, there is finally an appeal section, which is even better than what was provided by the legislation in 2002. This new appeal division would provide most claimants with a second chance, an opportunity to introduce new evidence about their claim and to do so in an oral hearing, if necessary. And, significantly, Mr. Chairman, the bill would make it possible to remove those who would abuse our system within a year of their final IRB decision. […] I want to underscore that the refugee appeal division foreseen in the Immigration and Refugee Protection Act 2003, and proposed, for instance, in Mr. St-Cyr’s private member's bill, does not actually include, as does the RAD in Bill C-11, the ability to present new evidence and in certain cases to have an oral hearing before the appeal division decision-maker. This is an improved RAD. It’s an additional level of administrative fairness, but it’s not going to happen if we don't achieve the other streamlining in the system that the package speaks to. (Standing Committee on Citizenship and Immigration, 40th Parliament, 3rd Session, meeting No. 12 (May 4, 2010) at pp. 1535, 1610 in JBA, Part II, Vol. 2, Tab 25; emphasis added)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-48", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 93", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Minister Kenney added before the Senate Committee on Social Affairs, Science and Technology: The result would be a streamlined system that would actually add greater procedural fairness, through the creation of what's known as the Refugee Appeal Division. This would allow failed claimants a full appeal of their claims. In terms of our system, Bill C-11 would provide for the following. First, the creation of a new interview with an Immigration and Refugee Board public servant, in place of a written form, early in the claims process. In our opinion, that would speed up the process and make it more efficient. Second, independent decision makers at the Refugee Protection Division of the IRB who are public servants rather than political appointees. That means that people who hold the hearings for asylum claimants will be, after those reforms, IRB officials rather than cabinet appointees. Third, a new fact-based refugee appeal division that even surpasses what refugee advocates have requested for a long time. […] The initial hearing at the Refugee Protection Division and the appeal at the Refugee Appeal Division both constitute an analysis of the risk faced by the claimant. Will they face a risk of torture or threat to their life if returned to their country of origin? . . . Our position is that once you have had two negative risk assessments — that is, once an IRB officer has looked at your case and said that you do not face risk if returned to your country and a refugee appeal decision maker has made the same decision — we do not think it is appropriate to have a third, redundant, risk assessment based on that legal criteria of risk, which is now embedded in sections 96 and 97 of the Immigration and Refugee Protection Act.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-49", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 93–95", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "(Standing Senate Committee on Social Affairs, Science and Technology, 40th Parliament, 3rd Session, Issue 11 (June 22, 2010) at 11:14, 11:19 in JBA, Part II, Vol. 2, Tab 34; emphasis added)\n\nThe same idea was reiterated by Minister Kenney during the second reading of Bill C-31, when it was presented in the House of Commons in 2012: I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal. (House of Commons Debates, 41st Parliament, 1st Session, No. 090, Vol. 146 (March 6, 2012) at 1515 in JBA, Part II, Vol. 2, Tab 36)\n\nShortly thereafter, he added: What we are proposing in C-31 goes above and beyond our legal and humanitarian obligations under both the Charter of Rights and Freedoms and the UN convention on refugees. It proposes an asylum system that would be universally accessible and that would respect absolutely our obligation of non-refoulement of people deemed to be in need of our protection. It would provide access to a full and fair hearing at an independent quasi-judicial body, which again goes above and beyond our charter and UN convention obligations. It would create for the first time a full and fact-based appeal at the refugee appeal division, accessible to the vast majority of failed asylum claimants who lose at the first instance. (House of Commons Debates, 41st Parliament, 1st Session, No. 094, Vol. 146 (March 12, 2012) at 1545 in JBA, Part II, Vol. 2, Tab 37; Emphasis added)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-50", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 96–99", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "From these excerpts, I understand that the legislator expected to create a more efficient process by having a single member of the RPD evaluate each refugee claim, and enabling this decision-maker to issue his or her decision more quickly, with the assurance that any error would be corrected on appeal by another specialized decision-maker with experience and strong analytical skills.\n\nRather than systematically holding a second hearing on appeal, which might delay the RAD’s final decisions on refugee claims, the claimants’ second “kick at the can” on appeal (see paragraph 89 above) was to be done on the basis of the record before the RPD, except in limited cases where new evidence would be admitted and the requirements of subsection 110(6) were fulfilled.\n\nThe RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts. This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness.\n\nThis appears to be substantially in line with the submissions of the United Nations High Commissioner for Refugees (UNHCR) on Bill C-31, in which the UNHCR noted that on an appeal in respect of refugee claims, the decision-maker should have the jurisdiction to review questions of both fact and law, be able to accept and assess new evidence, and to recognize refugees independently: UNHCR Submission on Bill C-31 Protecting Canada’s Immigration System Act, May 2012, online: UNHCR Canada < http://www.unhcr.ca/newsroom/publications/> in JBA Part I, Vol. 4, Tab 93.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-51", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 100–102", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "It was certainly expected in 2001 that the workload of the RAD would be important (i.e., 8,000 to 9,000 cases annually) and the IRB’s intent was to equip the new division with a corresponding level of staff and resources. The then-chairman of the IRB appears to have had no issue with respect to the capacity (in terms of staff and resources) of the RAD to substantively review RPD decisions on the merits and remedy errors made by the RPD: see above at paragraph 88. There is no indication that this exercise was viewed as a useless duplication of the work of the RPD, for this is exactly what justified reducing the number of members on the RPD panel involved in reviewing each refugee claim. It would certainly be more efficient to have only one instead of two decision-makers routinely involved in preparing and holding a hearing.\n\nThe restrictions on the claimants’ right to appeal introduced in 2012 would necessarily, in and of themselves, reduce the caseload of the RAD, while the other provision introduced expanded the RAD’s ability to admit new evidence.\n\nThe efficiency contemplated here by the legislator (that is, a more quickly-reached decision by a single member, usually reviewed – where the right of appeal exists – by a member of the RAD, generally without the need to hold a second hearing to correct any mistakes), as well as the legislator’s intention to assign the resources necessary to achieve this aim, are quite distinct from the considerations driving the judicial policy described in Housen and incorporated in the factors of Newton.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-52", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 103–106", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.\n\nThus, the RAD erred by applying the reasonableness standard to the RPD’s analysis of the objective evidence regarding state protection and to its conclusion in that respect. I would, therefore, dismiss the appeal with costs to the respondents.\n\nI wish to thank the interveners for their excellent submissions, which were quite useful.\n\nIn light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD’s findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. \"Johanne Gauthier\" J.A. “I agree Wyman W. Webb J.A.” “I agree D.G. Near J.A.”", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143152-1", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 1–3", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The matter before the Court is an appeal from a judgment of Justice Jocelyne Gagné of the Federal Court (the judge), which allowed the application for judicial review of Parminder Singh (the respondent) of a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada regarding his claim for refugee protection. The respondent’s refugee protection claim had previously been dismissed by the Refugee Protection Division (RPD), not only because he had failed to satisfactorily establish his identity, but because he was not credible and had an internal flight alternative available to him in India.\n\nThe appeal raises for the first time the issue as to how to interpret subsection 110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], which governs admissible evidence before the RAD. This provision was enacted as part of the Balanced Refugee Reform Act, S.C. 2010, c. 8 [BRRA], the objective of which was to amend and implement unproclaimed provisions in the IRPA providing for the creation of the RAD.\n\nAt the end of her reasons, the judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-2", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 4–6", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister of Citizenship and Immigration (the Minister) argued that the Federal Court erred in failing to apply the criteria laid out in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No 1632 [Raza] for the purposes of subsection 110(4), and that the RAD was entitled to refuse to admit into evidence a grade 12 diploma (the Diploma) that had been seized by the Canada Border Services Agency (CBSA) and that had not been submitted before the RPD. For the reasons that follow, I am of the view that the Minister’s submissions must be accepted and that the appeal must therefore be allowed.\n\nThe respondent is a citizen of India. He alleges to have been friends with one Bhupinder Singh when he was pursuing his studies, but that he only saw him occasionally following his graduation in 2002. Nonetheless, this individual apparently showed up at the respondent’s home in November 2012 to spend the night, before leaving for an unknown destination.\n\nSeveral days later, the respondent claims that the police arrested him in order to question him about Bhupinder Singh. He was purportedly held and tortured for three days before being released without conditions, when representatives from his village intervened on his behalf. Following this incident, he was apparently hospitalized for stomach pains. In support of his claims, he submitted a medical certificate to the RPD indicating that he had received treatment for injuries and vomiting, which contained a list of prescribed medications.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-3", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 7–9", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "About two weeks after this first incident, the respondent contends that the police arrested him a second time and detained him for 24 hours in order to question him further about Bhupinder Singh, before he was released once again due to the intervention of representatives from his village.\n\nAfter this second incident, the respondent alleges that his mother hired a smuggler to get him out of India. The respondent arrived in Canada on January 29, 2013, and claimed refugee protection at the port of entry. He handed over to the CBSA the driver’s licence and voter’s card the smuggler had obtained for him, as well as two school certificates issued in 2000 and 2002. The documents were seized, and the CBSA concluded after an analysis that the driver’s licence and voter’s card were probably forgeries. The respondent was initially detained due to the difficulty in establishing his identity, and was later released on condition that he report weekly to the CBSA’s offices.\n\nThe hearing before the RPD was held on April 2, 2013, and the notice of that decision was issued on May 7, 2013. First, the RPD found that the respondent had failed to establish his identity. In this regard, it noted that the CBSA had determined that the driver’s licence and voter’s card were probably forgeries, and opined that his credibility had been undermined by the fact that he had not made any efforts to obtain genuine versions of these documents through his family in India.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-4", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 10–11", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As for the school certificates, the RPD’s record contained only the one that had been issued in 2000. Questioned about the 2002 Diploma, the respondent stated that he believed that it was still in the possession of Citizenship and Immigration Canada and that he did not understand why a copy of it had not been forwarded to the RPD. This explanation was rejected by the RPD, and as a result there was no evidence to corroborate his claim of having studied with Bhupinder Singh until 2002.\n\nLastly, the respondent had produced a copy of a ration card as well as a birth certificate. The ration card had been issued in 2008 but had been corrected in 2011 to remove the respondent’s sister and replace the family photo, following his sister’s marriage in 2010. The RPD found that the one-year gap between the marriage and the correction to the family’s ration card affected the probative value of the document, since the photo attached to the ration card seemed to have been affixed permanently rather than in a manner that would permit it to be changed. Given that the four identity documents filed as evidence by the respondent raised concerns, the birth certificate alone was not sufficient to establish his identity.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-5", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 12–13", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, the RPD continued its analysis to conclude that the respondent’s narrative was not credible. The RPD pointed out that the respondent had changed the chronology of important events when he amended his Basis of Claim form, having initially placed his father’s cardiac problems after the two arrests, and then between the two arrests. Given the significance of the events in question, the RPD did not accept the respondent’s explanation that he had made a mistake with the dates and had only realized his error when he received his father’s medical report. The RPD also noted that this medical report only indicated facial paralysis and bed rest for a five-day period, which does not correspond to the claim that his father was half paralysed and permanently bedridden. The RPD further concluded that the medical report relating to the respondent’s stomach issues did not corroborate his allegations of torture.\n\nEven if the respondent had been able to establish his identity and the credibility of his narrative, the RPD ultimately found that he still had an internal flight alternative. While acknowledging that Indian police have the ability to pursue individuals throughout the country, the RPD nonetheless noted that only a limited group of militant Sikhs were targeted in this manner, and that the respondent did not have the profile of someone who would be targeted, were he to move elsewhere in India.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-6", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 14–15", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "On appeal at the RAD, the respondent submitted an application to file additional evidence, namely, a copy of the Diploma. In support of his application, he filed an affidavit attesting that he had received from his former counsel, on or about June 11, 2013, a copy of his file that included a copy of the Diploma, which had apparently been faxed to his former counsel by the CBSA on February 25, 2013. He pointed out that he had been unaware of this fact prior to June 11, 2013, that it was consequently impossible for him to have produced the document before the RPD, and that he was therefore justified in asserting during his hearing before the RPD that the Diploma had been seized.\n\nThe RAD refused to allow the Diploma to be admitted into evidence. It first opined that subsection 110(4) of the IRPA should be interpreted in light of the jurisprudence that has developed around paragraph 113(a) of the same statute, and in particular on the basis of Raza, given the similar wording used in both provisions. The RAD also pointed out that the fact that evidence corroborates allegations or contradicts the findings of the RPD does not make it new evidence. Ultimately, the RAD found that the Diploma had been available to the respondent at the time of the hearing on April 2, 2013, since a copy of it had been sent to his former counsel on February 25, 2013. Considering that the respondent had not alleged any incompetence or made a complaint against his former counsel, he and his counsel had access to the Diploma and it was reasonable to expect that the document would have been presented at the hearing before the RPD. Accordingly, the RAD concluded that the Diploma was inadmissible, and as a result, that there was no ground to hold a hearing.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-7", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 16", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the merits, the RAD was of the view that the three issues should be reviewed on a standard of reasonableness. With respect to the identity of the respondent, the RAD concluded that the RPD had erred by failing to make a finding on the probative value of the school certificates to establish the respondent’s identity, analyzing them solely from the perspective of his credibility as to whether he had gone to school with Bhupinder Singh. Therefore, the RPD could not dismiss the birth certificate on the basis that this document alone was insufficient to establish the respondent’s identity. The RAD therefore found that the respondent’s identity had been duly established based on his school certificate and birth certificate. Second, the RAD was of the view that the RPD had not made an error of fact or of law in its overall assessment of the respondent’s credibility, and that it could reasonably doubt his credibility in light of the varying information with regard to the chronology of events he claimed to have experienced, the fraudulent or altered documents he presented as evidence, and the medical documents that did not corroborate his allegations. Given these findings, the RAD was of the opinion that it was not necessary for it to respond to the internal flight alternative issue.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-8", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 17–18", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Two issues were raised in the application for judicial review before the Federal Court. First the Court had to determine whether the RAD erred in applying the criteria in Raza to assess the admissibility of new evidence, and then consider the application of those criteria to the facts of the case. In both cases, the judge applied the reasonableness standard of review. The first issue concerned the interpretation of the RAD’s home statute and was not subject to any of the exceptions to the presumption that this type of question is reviewable on the reasonableness standard, while the second was clearly a question of mixed fact and law.\n\nAfter comparing the wording of subsection 110(4) and paragraph 113(a) of the IRPA and acknowledging that the language was similar, the judge began by noting that the role of a Pre-Removal Risk Assessment (PRRA) officer differed from that of the the RAD. While PRRA officers are employees of the Minister and must show deference to decisions made by the RPD unless new evidence arises that would require a re-assessment of the risks set out in sections 96 and 97, the RAD is a quasi-judicial administrative tribunal that has been given the mandate of hearing appeals from decisions issued by the RPD and may set aside a decision in order to substitute the determination that, in its opinion, should have been made (IRPA, s. 111(1)). Given these distinctive roles, the judge was of the opinion that it was not appropriate to apply, mutatis mutandis, the criteria developed in the context of paragraph 113(a) to interpret subsection 110(4).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-9", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 19", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Relying on a statement made in the House of Commons by the Minister of Citizenship and Immigration during a debate on the establishment of the RAD to the effect that refugee claimants must be able to benefit from a “full fact-based appeal”, the judge continued this line of reasoning by adding that adopting a restrictive approach to the admissibility of new evidence would prevent the RAD from fulfilling its mission. Lastly, she noted that the implicit factors identified by the Federal Court of Appeal in Raza “find their source in the purpose of paragraph 113(a)”, according to Justice Sharlow herself. That being the case, the judge added, these factors are not transferable in the context of an appeal before the RAD.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-10", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 20", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having concluded that it was unreasonable for the RAD to have strictly applied the criteria established in Raza when it came time to interpret subsection 110(4) of the IRPA, the judge then inquired as to whether it was reasonable for the tribunal to have refused to admit the Diploma into evidence. She determined that this piece of evidence could be material to demonstrate that the RPD erred in making negative findings with respect to the respondent’s credibility, namely, that the CBSA had not confiscated the Diploma and that the respondent had not established that he had attended school with Bhupinder Singh until 2002. The judge also found it unreasonable for the RAD to have concluded that the respondent should have brought this evidence before the RPD, given that it was not in his possession and that he mistakenly believed that the CBSA still had it. As for the fact that the respondent did not file a complaint against his former counsel, the judge opined that it was unreasonable to make this a prerequisite for filing new evidence or to expect the respondent to know the procedure for filing complaints before the Barreau du Québec.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-11", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 21–22", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?\n\nIt is well-settled that the role of this Court when hearing an appeal of a judgment on an application for judicial review is to determine first, whether the Federal Court identified the appropriate standard of review and second, whether it applied that standard correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559; Wilson v. Atomic Energy of Canada Ltd., 2015 FCA 17 at para. 42, [2015] 4 R.C.F. 467 [Wilson] ; Telfer v. Canada (Revenue Agency), 2009 FCA 23 at paras. 18-19, [2009] F.C.J No. 71. In other words, this Court should “step into the shoes” of the Federal Court and focus on the administrative decision that is the subject of the judicial review: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 247, [2012] 1 S.C.R. 23.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-12", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 23", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted earlier, the judge applied the reasonableness standard to the interpretation of subsection 110(4) of the IRPA. In so doing, she relied on the well-established presumption that one must normally defer to an administrative decision-maker when it is called upon to interpret a statute closely related to its function and with which it has particular familiarity: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54, [2008] 1 S.C.R. 190 [Dunsmuir]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras. 26 and 28, [2011] 1 S.C.R. 160 [Smith]; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at paras. 16 and 18, [2011] 3 S.C.R. 471; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 at para. 36, [2011] 3 S.C.R. 616 [Nor-Man]; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 167, [2013] 1 S.C.R. 467. Although this presumption is rebuttable, the judge correctly concluded that the interpretation of subsection 110(4) of the IRPA did not fall under one of the exceptions recognized by the existing jurisprudence: see, in particular Dunsmuir, at paras. 55 to 61; Nor-Man, at para. 35; Smith, at para. 26. Indeed, it is not a question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, or a constitutional question, a question regarding the jurisdictional lines between competing tribunals, or even a true question of jurisdiction.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-13", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 24–25", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The intervener nonetheless asserted that the judge erred in selecting a reasonableness standard, on the ground that she had an obligation to put an end to the differences in interpretation resulting from the wording of subsection 110(4) within the RAD. Relying on this Court’s recent decision in Wilson, the intervener related the various different approaches adopted by RAD members in applying subsection 110(4) and requested that we put an end to this uncertainty and to the conflicting results that are likely to result from it.\n\nWith respect, I am not persuaded by this argument. It should be noted that Wilson is an “unusual” case, to use the expression employed by Justice Stratas, in that the question as to whether the Canada Labour Code, R.S.C. 1985, c. L-2 permits dismissals on a without cause basis has been one of “persistent” discord, to the extent that the answer to this question has largely depended on the identity of the adjudicator. Furthermore, adjudicators are not bound by the decisions of their colleagues and operate independently rather than within an institution such as an administrative tribunal, which decidedly does not favour the emergence of a consensus or a consistent interpretation.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-14", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 26", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this instance, we are not confronted with a persistent discord that has existed for many years. The RAD was established in December 2012, and only began issuing decisions in 2013. There is therefore no urgent need to intervene, especially since the principles that will emerge from the jurisprudence of this Court and the Federal Court will necessarily provide a framework within which the RAD will be able to interpret subsection 110(4) of the IRPA. Thus, there is no need to depart from the general principle that an administrative tribunal is owed deference when it interprets its enabling statute; the early, tentative steps of the RAD and its differences of opinion as to the interpretation of certain statutory provisions do not affect the rule of law and are merely the inevitable consequence of choosing to entrust a specialized tribunal with the task of adjudicating disputes arising from the implementation of a new scheme.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-15", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 27", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, there was reason to believe that this Court owed no deference with regard to the decision made by an administrative decision-maker in the context of the IRPA, where the certified question on the basis of which the Federal Court decision was being appealed raised an issue of statutory interpretation. After all, the Federal Court may only certify serious questions of general importance that transcend the interests of the parties: IRPA, s. 79. Is this not precisely the type of question that requires a definitive interpretation and on which the Court of Appeal should rightly intervene to put a stop to inconsistencies that may develop within an administrative body? At least, this is what was suggested in decisions such as Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193. In that last matter, Justice Bastarache (writing for the majority) states at paragraph 43: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-16", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 27", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board that are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal – and inferentially the Federal Court, Trial Division – is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no precedential value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law. Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-17", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 28–30", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Yet the Supreme Court decided otherwise. In a recent decision, the highest court concluded that the presence of a certified question was not determinative and that the applicable standard of review for such questions is reasonableness: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44, [2015] S.C.J. No. 61. In order to reach such a conclusion, the Court essentially relied on the fact that it is the judgment itself that is ultimately the subject of an appeal, and not merely the certified question.\n\nFor all of these reasons, I therefore conclude that the judge correctly identified the standard of review to be applied to the application for judicial review that was before her. In other words, the RAD’s interpretation of subsection 110(4) of the IRPA was subject to review on the reasonableness standard, in accordance with the presumption that an administrative body’s interpretation of its home statute is owed deference by a reviewing court.\n\nI would hasten to add, as the judge did, that the present appeal does not turn on the role of the RAD and on the standard of review it should apply when ruling on decisions issued by the RPD, but solely on the factors the RAD must consider when assessing the admissibility of evidence that was not presented before the RPD. The standard to be applied by the RAD when reviewing a decision of the RPD on the merits is dealt with in another ruling of this Court in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-18", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 31–32", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted above, the original version of the IRPA had anticipated the creation of the RAD, tasked with hearing appeals of certain RPD decisions. However, the relevant provisions were never implemented, and it was ultimately not until the enactment of the BRRA, on June 29, 2010, that the unproclaimed provisions (after a few minor amendments) creating the RAD would be implemented. Those provisions came into force on December 15, 2012 (Order Fixing December 15, 2012 as the Day on which Certain Sections of the Act Come into Force, S.I./2012-94, (2012) C. Gaz. II, 2980-2981; IRPA, s. 275).\n\nThe version ultimately adopted by Parliament differs in certain respects from the original 2001 document. More specifically, subsection 110(3) allows the Minister and the person who is the subject of the appeal to present not only written submissions, as was the case in the original version, but documentary evidence as well. It was precisely in the wake of this amendment that subsection 110(4) was introduced, which restricts evidence that may be presented by the person who is the subject of the appeal to “only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.”", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-19", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 33", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The wording of this provision bears a striking resemblance to that in paragraph 113(a), which governs the admissibility of new evidence in PRRA applications. A comparison of both texts allows for a better visualization of this resemblance: Evidence that may be presented Éléments de preuve admissibles 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 110. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Consideration of application Examen de la demande 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-20", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 34–35", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.\n\nThese conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal “may present only” (« ne peut présenter ») evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD’s record (s. 110(3)) and must for that reason be narrowly interpreted. Indeed, the judge seems to agree with this approach, insofar as she states that the respondent “was required to establish that he could not have reasonably been expected to provide the newly submitted documents at his RPD hearing” (para. 47). If she ultimately sides with him, it is because his request to file this new evidence fell squarely, in her view, within the scope of subsection 110(4), “and it met its explicit criteria” (para. 62).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-21", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 36–37", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent and intervener relied on Elezi v. Canada (Minister of Citizenship and Immigration), 2007 FC 240, [2008] 1 F.C.R. 365 [Elezi] and, to a lesser extent, on Sanchez v. Canada (Minister of Citizenship and Immigration), 2009 FC 101, [2009] F.C.J No. 101, to argue that the RAD may take into account the probative value and credibility of evidence in order to counteract the requirements of subsection 110(4). With respect, I am unable to agree with this interpretation.\n\nI would first note that Elezi was issued nine months before the Court of Appeal’s ruling in Raza, and is therefore no longer authoritative insofar as it departs from this later decision. In addition, in Elezi, the PRRA officer’s decision not to admit some of the evidence was deemed to be unreasonable either because the evidence arose after the RPD’s decision, or because the applicant could not reasonably have been expected to present that evidence to the RPD in the circumstances. As a result, the assertion that one cannot reject credible evidence on the sole ground that it is “technically inadmissible” must be considered purely as an obiter.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-22", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 38", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The true crux of the issue here consists in determining whether the implied conditions of admissibility identified in the context of paragraph 113(a) by Justice Sharlow in Raza are also applicable to subsection 110(4). Because it goes to the heart of the submissions filed by counsel for both parties and the intervener, it is important to reproduce the following relevant excerpt from that decision: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or (c) contradicting a finding of fact made by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-23", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 38", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Materiality: If the evidence is material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a), within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-24", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 39–40", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted above, the judge refused to transpose the implicit admissibility criteria identified by the Court of Appeal regarding paragraph 113(a) to the context of subsection 110(4). Relying on the fact that questions relating to credibility, relevance, newness and materiality arise implicitly from the purpose of paragraph 113(a), as Justice Sharlow herself declared, the judge was of the opinion that the different role and status of the RAD as compared to that of a PRRA officer called for a distinctive analysis. For the reasons that follow, I cannot subscribe to this view.\n\nIt must be assumed that Parliament’s decision to use near-identical wording did not happen by chance. Under a well-known rule of interpretation, it must be presumed that Parliament, when it uses the same wording as a provision that has already been interpreted by the courts, intends to rely on that interpretation: see Elmer A. Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983 at p. 125.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-25", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 41", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is true that the French iteration of subsection 110(4) differs slightly from paragraph 113(a), insofar as it does not state “that the applicant could not reasonably have been expected…to have presented” (« qu’il n’était pas raisonnable … de s’attendre à ce qu’il les ait présentés »), but rather “that the person could not reasonably …have presented” (« qu’elle n’aurait pas normalement présentés »). I would agree with the judge that this distinction is not particularly telling, nor is it sufficient, in and of itself, to set aside past jurisprudence that has developed with regard to paragraph 113(a). In addition, no great inference may be drawn from the absence of the word “new” in the English version of subsection 110(4). Not only is the word “new” (« nouveau ») nowhere to be found in the French version of paragraph 113(a), but it is furthermore self-evident that evidence that arose after the rejection of the refugee protection claim will necessarily be new.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-26", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 42", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The fact that the RAD is a quasi-judicial administrative tribunal, as opposed to the PRRA officer, who is an employee of the Minister, acting within his or her employer’s discretion, must obviously be taken into consideration. The same applies to the fact that the RAD has an appellate function and has the authority to set aside the RPD’s decision and substitute that which should have been made, while the PRRA officer must show deference and does not sit in appeal of the RPD’s decision and his or her only mission is to assess any new pre-removal risk. These distinctions are not determinative of the admissibility of new evidence, however, and I note that the trial judge did not specify how the distinctive role and status of the RAD and the PRRA officer should affect the criteria for admitting evidence or how it would allow for the negation of the presumption to which I referred above.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-27", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 43", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In fact, the criteria used in Raza are consistent with the tests generally adopted by courts and administrative bodies, and are essentially designed to preserve the integrity of the judicial process: see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 at para 10, [2000] 1 S.C.R. 44. Although they were established by the Supreme Court in the context of a criminal proceeding (see Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775, 106 D.L.R. (3d) 212 [Palmer]), the criteria of newness, relevance, credibility and materiality were subsequently applied in civil matters (J.T.I MacDonald Corp. v. Canada (Attorney General), 2004 CanLII 30110 at para. 3, [2004] J.Q. no 9409 (C.A.Q.), in disciplinary law (Morin v. Regional Administration Unit #3 (P.E.I.), 2002 PESCAD 9 at para. 140, 213 D.L.R. (4th) 17 (P.E.I.C.A.), in aboriginal law (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 22 at para. 20, [2002] F.C.J No. 146) and in a number of other areas (see Donald J.M. Brown, Civil Appeals, Carswell, Toronto, 2015, pp. 10-16 to 10-18).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-28", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 44", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Indeed, in my view it would be difficult to argue that the criteria set out by Justice Sharlow in Raza do not flow just as implicitly from subsection 110(4) as from paragraph 113(a). It is difficult to see, in particular, how the RAD could admit documentary evidence that was not credible. Indeed, paragraph 171(a.3) expressly provides that the RAD “may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.” It is true that paragraph 110(6)(a) also introduces the notion of credibility for the purposes of determining whether a hearing should be held. In that regard, however, it is not the credibility of the evidence itself that must be weighed, but whether otherwise credible evidence “raises a serious issue” with respect to the general credibility of the person who is the subject of the appeal. In other words, the fact that new evidence is intrinsically credible will not be sufficient to warrant holding a hearing before the RAD: this evidence would still be required to justify a reassessment of the overall credibility of the applicant and his or her narrative.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-29", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 45–47", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The same would apply to relevance. This is a basic condition for the admissibility of any piece of evidence, and it would be difficult to imagine the introduction of new evidence being somehow exempt from this criterion. Indeed, Rules 3(3)(g)(iii) and 5(2)(d)(ii) of the Refugee Appeal Division Rules, S.O.R./2012-257 implicitly allude to this by providing that both the appellant’s memorandum and memorandum in reply must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant (« la façon dont ils sont liés à l’appelant »).\n\nThe newness criterion may appear somewhat redundant and does not really add to the explicit requirements of subsection 110(4).\n\nAs for the fourth implicit criterion identified by this Court in Raza, namely, the materiality of the evidence, there may be a need for some adaptations to be made. In the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk. The RAD, on the other hand, has a much broader mandate and may intervene to correct any error of fact, of law, or of mixed fact and law. As a result, it may be that although the new evidence is not determinative in and of itself, it may have an impact on the RAD’s overall assessment of the RPD’s decision.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-30", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 48–49", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Under subsection 110(6) of the IRPA, a RAD hearing may be held, subject to three conditions associated with the existence of new documentary evidence. The principle whereby the RAD proceeds without holding a hearing, as set out in subsection 110(3), is subject to an exception only where the documentary evidence “(a) […] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) […] is central to the decision with respect to the refugee protection claim; and (c) […] if accepted, would justify allowing or rejecting the refugee protection claim.” These three conditions are unquestionably related to the materiality of the new documentary evidence that the RAD could be required to consider. If such is the case, as one would have reason to believe, it would be redundant to require materiality of evidence for it to be admissible as new evidence, to then subject the conduct of a hearing to the same criterion.\n\nSubject to this necessary adaptation, it is my view that the implicit criteria identified in Raza are also applicable in the context of subsection 110(4). For the reasons set out above, I am not satisfied that the differing roles of the PRRA and the RAD, and the separate status of persons who perform these functions, are sufficient to set aside the presumption that Parliament intended to defer to the courts’ interpretation of a legislative text when it chose to repeat the same essential points in another provision. Not only are the requirements set out in Raza self-evident and widely applied by the courts in a range of legal contexts, but there are very good reasons why Parliament would favour a restrictive approach to the admissibility of new evidence on appeal.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-31", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 50", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As the Supreme Court noted in Palmer, a well-established judicial principle exists whereby the evidence and issues must be introduced exhaustively and dealt with at trial in criminal matters or at first instance in civil matters. As a case progresses, the issues in the matter must normally be further narrowed; the effect of introducing new evidence would be rather to expand the scope of the debate. This is what the RAD aptly highlighted at paragraph 20 of its reasons: On this topic, it should be noted that the fact that evidence corroborates facts, contradicts RPD findings or clarifies evidence before the RPD does not make it “new evidence” within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD. In my opinion, this is exactly what subsection 110(4) of the Act seeks to prohibit. [Footnotes omitted]", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-32", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 51–52", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this regard, it is significant to note that Parliament’s departure from the principle of a paper-based appeal, held in the original version of the IRPA adopted in 2002, was limited. At the risk of repeating myself, the basic rule is that the RAD “must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division […]” (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6). Where the RAD finds that all of the evidence should be heard again in order to make an informed decision, it must refer the case back to the RPD (ss. 111(2)). This legislative framework reflects Parliament’s clear wish to narrowly define the introduction of any new evidence.\n\nThe judge acknowledged that an appeal filed with the RAD is “mostly intended as a ‘paper-based’ appeal” (para. 52). However, it is her opinion that a strict interpretation of subsection 110(4) would limit an applicant’s access to a “full fact-based appeal,” which would go against the wishes expressed by Jason Kenney, former Minister of Citizenship and Immigration, in a statement made in the House on March 6, 2012 (House of Commons Debates, 41st Parl., 1st Sess., No. 90 (March 6, 2012) at p. 5874).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-33", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 53", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is true that in tabling the bill, the Minister affirmed that the vast majority of applicants from non-designated countries would have, for the first time, a “fact-based appeal” before the RAD. This statement alone is insufficient to substantiate the theory that criteria explicitly set out at subsection 110(4) can be set aside. It is at best ambiguous, and could be simply construed as differentiating the appeal from the much narrower scope of a judicial review. In this regard, I support the argument of the appellant and his analysis of the circumstances in which the Minister made his statement.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-34", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 54", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge also based the decision on the reduced timeframes within which claimants must submit their documents to support the flexible interpretation of the admissibility criteria she considered in her decision. The amendments made to the IRPA and to the Immigration and Refugee Protection Regulations, S.O.R./2002-227 [IRPR] do put a great deal of pressure on refugee protection claimants. The referral of a claim to the RPD is done within the three days following the filing of the claim (IRPA, subsection 100(1)), and the hearing must take place within 60 days of the referral (IRPR, paragraph 159.9(1)(b)), and even within 30 or 45 days for nationals from a designated country. Furthermore, according to paragraph 34(3) of the Refugee Protection Division Rules, S.O.R./2012-256 [RPD Rules], refugee protection claimants must file their supporting documentation before the RPD 10 days before the hearing. However, these considerations do not suffice to set aside the clear legislative intention to not authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-35", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 55", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Inversely, the desire to counter the abuses that could occur under the regime applicable before the BRRA and the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 came into force should not be invoked to restrict new evidence that those finding themselves with valid reason before the RAD should seek to file. In his factum, the Minister stated that the BRRA showed some degree of a willingness to enhance the admissibility criteria for new evidence at the RAD. Undoubtedly, Parliament intended to ensure the integrity of the immigration system by more effectively countering individuals who try to abuse it. To do so, Parliament took a certain number of measures, such as the creation of the RAD, and set out clear rules of evidence and procedure to ensure its appropriate functioning. These rules must be respected, and it must be presumed that the explicit choices that were made match the objective pursued. It is not the responsibility of the courts to rewrite such provisions when they are intelligible and unequivocal.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-36", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 56", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, the intervener stated that the RAD should take its inspiration from the values enshrined in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c. 11 [Charter] when it rules on the admissibility of new evidence. Based on paragraph 3(3)(d) of the IRPA, further to which the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Charter, as well as the decisions rendered by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola], counsel for the intervener claimed that the RAD had to go beyond the requirements set out in subsection 110(4) and was obligated to proceed with a proportionality analysis between the seriousness of the violation of the Charter right and the statutory objectives. The following is how counsel described the test they propose (in paragraph 34 of their factum): (a) If the evidence is capable of credibly proving relevant circumstances that arose after the RPD’s decision, then the evidence must be considered. (b) If the evidence is only capable of credibly proving relevant circumstances that arose prior to the RPD’s decision, then the RAD should consider if the appellant established either (i) that the evidence was not reasonably available or (ii) that she could not reasonably have been expected in the circumstances to have presented it, at the time of the RPD decision.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-37", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 56", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this assessment, the RAD should recall that « in order for there to be a ‘full fact-based appeal’ before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur » [Singh v. Canada (MCI), 2014 FC 1022 at para. 55, per Gagné J.]. If the appellant is able to establish either condition, then the evidence must be admitted. (c) If the appellant is unable to satisfy either condition, then the RAD should consider whether the evidence raises a prima facie case of risk and, if admitted, could allow the RAD to come to a different conclusion on a central aspect of the claim than that of the RPD. If it does, then the RAD must conduct a proportionality exercise in which it balances the severity of the interference that exclusion would cause to the appellant’s Charter rights with the statutory objectives underlying s. 110(4).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-38", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 57", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect, I cannot agree with this argument. It is true that, in Doré, the Supreme Court stated that it was of the opinion that an administrative decision-maker must weigh the values set out in the Charter and the statutory objectives in the exercise of his or her discretionary power. In the context of a judicial review, the Court must determine whether the decision under review is the result of a proportionate balancing of the rights and values protected by the Charter, a process that bears some resemblance to the framework of analysis established in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 when the very validity of a legislative text is challenged. This approach is well summarized in the following excerpt from Doré, at paragraph 57: On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155) and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-39", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 58–59", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Based on this approach, counsel for the intervener claim that the values protected by section 7 of the Charter must enter into the interpretation and application of subsection 110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision. However, this thesis encounters at least two difficulties.\n\nFirst of all, it has not been established in this case that the values protected by section 7 of the Charter are affected by the RAD’s decision not to admit as new evidence the Diploma that the respondent wanted to adduce. The intervenor argued that excluding credible evidence could result in an appeal being dismissed and consequently in the removal of the foreign national “as soon as possible”, because the conditional removal order comes into force 15 days after notification that the claim is rejected (IRPA, s. 49(2)c)). However, in my view this does not seem sufficient to conclude that the decision not to admit new evidence on appeal necessarily affects the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-40", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 60", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is first noteworthy that the decision made by the RPD, and on appeal before the RAD, does not pertain to the respondent’s removal, but solely to whether he is genuinely a Convention refugee or a person in need of protection in accordance with sections 96 and 97 of the IRPA. I am prepared to recognize that the RAD’s decision to exclude evidence on the grounds that it does not meet the criteria in subsection 110(4) will have a significant impact if a foreign national tries to submit that same evidence to a PRRA Officer or to a Removal Officer. Nevertheless, the respondent in this case failed to establish his credibility; the RAD found that the RPD could reasonably conclude that the respondent’s credibility was seriously undermined, and that that conclusion would be valid even if the Diploma were admitted in evidence. For reasons set out below, I am of the opinion that that conclusion falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and consequently the respondent did not establish that his life, liberty or security would be in danger if he were returned to India.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-41", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 61", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, the intervenor did not convince me that the RAD’s decision not to admit new evidence would engage the principles of fundamental justice. It must be remembered that a foreign national claiming status as a refugee or a person in need of protection benefits from an extensive, multi-stage process that enables him to assert his claims before several levels of independent and impartial quasi-judicial tribunals and administrative decision-makers, and that he can apply for judicial review of those decisions to the Federal Court. While the right of appeal has not been recognized as a principle of fundamental justice (see Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para. 47, [2005] 2 S.C.R. 539; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at pp. 741-742, 90 D.L.R. (4th) 289), Parliament decided to enhance the former regime and to implement the provisions of the IRPA establishing the RAD. The legislator could have provided only for an appeal on the record without a hearing, but elected to open the door to the submission of new evidence and hearings in carefully limited circumstances. I fail to see how enhancing a system already broadly respectful of the international and constitutional obligations to which Parliament and the government are subject could jeopardize that same system, especially since the criteria used in respect of admissibility of new evidence are essentially similar to those normally used in judicial and quasi-judicial proceedings on appeal, in both civil and criminal matters. The constitutionality of subsection 110(4) of the IRPA has not been challenged in this case, so I will abstain from drawing any definitive conclusion in that regard.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-42", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 61–62", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, I have not been convinced that the exclusion of the Diploma by the RAD is contrary to the principles of fundamental justice, even assuming that the exclusion of that evidence affects the respondent’s right to life, liberty and security.\n\nHowever, there is more. A close reading of Doré shows that an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion: Doré, para. 55; Loyola, para. 35; R v. Clarke, 2014 SCC 28 at para. 16, [2014] 1 S.C.R. 612. When legislation or regulations are clear and unambiguous, it is not up to the courts to rewrite them on the pretext of ensuring conformity with Charter values (Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 262 at para. 107, [2015] 4 F.C.R. 162; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 at para. 67, [2014] 3 S.C.R. 431). Except under exceptional circumstances, the courts only have the authority to declare invalid legislation that is unconstitutional, and only if the issue is explicitly raised and the Attorney General has been notified. It is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-43", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 63", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, subsection 110(4) is not written in an ambiguous manner and does not grant any discretion to the RAD. As mentioned above (see paras. 34, 35 and 38 above), the admissibility of fresh evidence before the RAD is subject to strict criteria and neither the wording of the subsection nor the broader framework of the section it falls under could give the impression that Parliament intended to grant the RAD the discretion to disregard the conditions carefully set out therein. Moreover, this approach complies perfectly with this Court’s decision in Raza. The criteria set out in that decision regarding paragraph 113(a), which, moreover, are not necessarily cumulative, do not replace explicit legal conditions; rather they add to those conditions to the extent that they are “necessarily implied” from the purpose of the provision, to reiterate this Court’s words at paragraph 14 of Raza. Otherwise, this would mean ignoring the conditions set out at subsection 110(4) and then delving into a balancing exercise between Charter values and the objectives sought by Parliament. In the absence of a direct challenge to this legislation, it should be given effect and the RAD has no choice but to comply with its requirements.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-44", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 64–65", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.\n\nThus, it is my opinion that the RAD did not err in using “mutatis mutandis” the implicit criteria from Raza to interpret subsection 110(4); this interpretation seems not only reasonable but also correct. Furthermore, the RAD could reasonably find that the Diploma was inadmissible because it could not be considered fresh evidence. The RAD essentially based its finding on the fact that the respondent had access to the Diploma at the time of his hearing before the RPD on April 2, 2013, since the CBSA had sent a copy of it to his counsel and he could have obtained a copy from the CBSA and submitted it himself as evidence to the RPD.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-45", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 66", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is true that the immigration officer apparently did not submit the Diploma to the RPD, as he should have under subsection 3(5) of the RPD Rules. Furthermore, the respondent contends that he only learned in June 2013 that his lawyer before the RPD had received a copy of that document in February 2013. However, that claim by itself is not enough to relieve the respondent of any responsibility. It is settled that an applicant must live with the consequences of the actions of his counsel: Cove c. Canada (Minister of Citizenship and Immigration), 2001 FCT 266 at paras. 6-11, [2001] F.C.J No. 482. As the Federal Court noted in Nagy v. Canada (Minister of Citizenship and Immigration), 2013 FC 640 at para. 60, [2013] F.C.J No. 664, “[t]here is a high threshold governing the circumstances and evidentiary criteria that must be met before the Court will grant relief under section 18.1 of the Federal Courts Act on the basis of the negligence of counsel.” See also: Bedoya v. Canada (Minister of Citizenship and Immigration), 2007 FC 505 at para. 19, [2007] F.C.J No. 680.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-46", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 67", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this respect, I would note that it is settled in Federal Court immigration jurisprudence that an allegation of professional incompetence of counsel will not be upheld if there is no evidence that a complaint has been filed with the competent authorities of the bar to which the counsel belongs or without an explanation personally issued by the professional involved: see as examples, Odafe v. Canada (Minister of Citizenship and Immigration), 2011 FC 1429 at para. 8, [2011] F.C.J No. 1762; Teganya v. Canada (Minister of Citizenship and Immigration), 2011 FC 336 at paras. 26-37, [2011] F.C.J No. 430; Parast v. Canada (Minister of Citizenship and Immigration), 2006 FC 660 at para. 11, [2006] F.C.J No. 844; Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 269 at paras. 17-28, [2008] F.C.J No. 344. Indeed, the Federal Court adopted a protocol in March 2014 outlining the procedure when a party wishes to make such an allegation, and in particular setting out the obligation to send a notice to counsel who is the subject of the allegations that are to be made against him or her and invite him or her to provide a response that could be submitted to the Court (Procedural Protocol Re: Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court (March 7, 2014), on line: Federal Court of Canada ).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-47", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 68–70", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this case, the judge determined that it was unreasonable for the RAD to expect the applicant to know of the complaints procedure before the Barreau du Québec, much less be willing to attack the competence and ethics of his former counsel. I do not share that opinion. Not only does the judge not cite any precedent to support her finding, but she also ignores the fact that the applicant was represented by experienced counsel before the RAD.\n\nIn short, the RAD could reasonably conclude in the circumstances that the Diploma did not constitute new evidence. This piece of evidence is not new; it was accessible to the respondent, and his lawyer had received a copy from the CBSA. Since the respondent had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her with the appropriate authorities, the RAD had no choice but to reject this evidence in accordance with subsection 110(4) of the IRPA.\n\nLastly, the judge invoked the possibility that inadmissibility of evidence could give rise to “serious issues of procedural equity” because a claimant who is deserving of a hearing could be refused one. In her opinion, such was the case here: “In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible” (para. 53).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-48", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 71–72", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, as mentioned above, holding a hearing is not automatic simply because new evidence is admitted before the RAD. This new evidence must still meet the three criteria set out in subsection 110(6) of the IRPA. In this case, there was not even an attempt to show how the Diploma was determinative in establishing the respondent’s credibility and how it would make up for the various shortcomings that the RPD identified in his testimony and that were confirmed by the RAD. It should be recalled that the RPD found that the respondent’s narrative was deficient in several respects: he contradicted himself about precisely when his father had had a heart attack; neither his allegations of torture nor his father’s purported medical condition are corroborated by the medical evidence; he presented as evidence fraudulent and altered documents; and he took no steps to obtain probative, acceptable documents with which to establish his identity. In light of all these factors, it is far from a given that the Diploma would be essential in deciding the respondent’s refugee protection claim and would warrant allowing this claim.\n\nConsequently, it cannot be assumed that admitting this document into evidence would have led to a hearing or that its rejection undermined procedural fairness. Nor can one invoke the possibility that a hearing might have resulted from the admission into evidence of the Diploma to argue for a flexible interpretation of subsection 110(4): not only does holding a hearing in the present case seem highly theoretical, but the admissibility of a piece of evidence cannot be assessed by taking account of the consequences that could result for the purposes of applying subsection 110(6).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-49", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 73", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "For all the above reasons, I am of the opinion that the appeal should be allowed, that the Federal Court judgment should be set aside and that the RAD decision should be confirmed. Accordingly, the respondent is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the IRPA.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-50", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 74", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. “Yves de Montigny” J.A. “I agree M. Nadon J.A.” “I agree Johanne Gauthier J.A.” Translation FEDERAL COURT OF APPEAL", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-37663-1", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 1–4", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Luis Alberto Hernandez Febles, a national of Cuba, was convicted in the United States in 1984 and 1993 of assault with a deadly weapon. He came to Canada in 2008 after completing his prison sentences and claimed refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (RPD) held that Article 1F (b) of the United Nations Convention relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No 6 (Convention) excluded him from the definition of a refugee. This was because his convictions in the United States provided serious reasons for considering that he had committed “a serious non-political crime” outside Canada.\n\nMr Febles says that alcohol was a factor that led to his commission of these crimes, he has served his sentences, and is now rehabilitated. He argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status, and to protect the public of a receiving state from convicted criminals who are dangerous. Since Mr Febles had served his sentence, he was not a fugitive from justice. Consequently, he says, the RPD was obliged to consider whether, despite his criminal record, he represents a danger to the Canadian public.\n\nThe question to be decided in this appeal is whether the RPD erred in law because, in determining if Mr Febles was excluded from refugee status on the ground that he had committed a “serious” crime within the meaning of Article 1F (b), it failed to consider whether he was rehabilitated and posed a present danger.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-2", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 5–8", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the RPD correctly concluded that whether a refugee claimant who has served his sentence poses a present danger to the Canadian public is not relevant for determining the seriousness of a crime for the purpose of Article 1F (b). Accordingly, I would dismiss the appeal from the decision of the Federal Court (2011 FC 1103), in which Justice Scott (Application Judge) denied Mr Febles’ application for judicial review to set aside the RPD’s decision. B. FACTUAL BACKGROUND\n\nMr Febles left Cuba in 1980 and was accepted by the United States as a refugee by virtue of his fear of persecution as a political dissident. However, he subsequently lost his refugee status as a result of his criminal convictions, and is subject to an administrative warrant of removal from the United States.\n\nMr Febles entered Canada illegally on October 12, 2008, and two days later applied for refugee protection on the ground of a well-founded fear of persecution in Cuba for his political beliefs. During his interview with an officer of the Canada Border Services Agency (CBSA) to determine whether the claim was eligible to be referred to the RPD, Mr Febles revealed his criminal convictions in the United States.\n\nOn the basis of a report filed by a CBSA officer, Mr Febles was referred to the Immigration Division of the Immigration and Refugee Board for an inadmissibility hearing. Following that hearing, Mr Febles was found to be inadmissible and a deportation order was issued dated June 3, 2010. The basis of the inadmissibility finding was that he had been convicted of an offence outside Canada for which he could have been sentenced to a maximum of at least 10 years’ imprisonment if it had been committed in Canada.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-3", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 9–10", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Despite Mr Febles’ criminal record, a CBSA officer decided not to request the Minister of Citizenship and Immigration (MCI) for an opinion as to whether his claim was ineligible to be referred to the RPD on the ground that he posed a danger to the public in Canada. Nonetheless, on August 10, 2010, the Minister of Public Safety and Emergency Preparedness (MPSEP) filed a notice of intervention in Mr Febles’ hearing before the RPD, alleging that Article 1F (b) excluded him from the definition of a refugee because there were serious reasons for considering that he had committed a serious non-political crime outside Canada. C. DECISION OF THE RPD\n\nIn its reasons for decision, dated October 27, 2010, the RPD described the circumstances surrounding the crimes of which Mr Febles had been convicted in 1984 and 1993, that is, assaults with a deadly weapon other than a firearm. He had been sentenced to two years in prison and three years on probation for each of these offences. He testified that he served just over a year of the first sentence, and then spent more time in prison for breaching the conditions of his probation. He served the entirety of the second sentence and observed his probation conditions. He said that since 1993 he has been sober and has not re-offended.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-4", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 11–13", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Focussing on the second offence, the RPD noted that Mr Febles’ conviction had been for an offence for which a maximum sentence of at least 10 years’ imprisonment could be imposed if committed in Canada, and that this raised a presumption that the crime was “serious”. However, it also stated that this presumption could be rebutted by other factors. Nonetheless, the RPD concluded that the gravity of Mr Febles’ crime excluded him from refugee protection, even though he had committed the more recent of the crimes 17 years ago, was remorseful, had served his sentence, and has chosen “to follow a straighter path” since 1993 (RPD reasons at para. 24). D. DECISION OF THE FEDERAL COURT\n\nThe Application Judge relied on Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R 164 at para. 44 (Jayasekara) for the proposition that in determining whether a refugee claim is excluded by Article 1F (b) a court should not balance the seriousness of the crime as indicated by the maximum punishment that it carries if committed in Canada against “factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin”.\n\nAccordingly, the Application Judge held (at para. 50) that Mr Febles’ completion of his sentence was relevant only to the seriousness of the crime, not to “rehabilitation, expiation, recidivism and on-going danger.” The RPD was precluded from taking rehabilitation into account in assessing the seriousness of the crimes committed by Mr Febles. It had therefore not unlawfully fettered the exercise of its discretion by failing to address whether he currently posed a danger to the Canadian public.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-5", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 14–16", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Application Judge certified the following question for appeal to this Court pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, 2001 S.C., c. 27 (IRPA): When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?\n\nFor the reasons that follow I would answer the certified question in the negative and dismiss the appeal. E. LEGISLATIVE FRAMEWORK\n\nAn understanding of the issue raised in this appeal depends in part on locating it within the complex statutory scheme created by IRPA for the consideration of criminality in a variety of contexts.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-6", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 17", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Paragraph 36(1)(b) of IRPA applies to all non-nationals and describes the circumstances in which they are inadmissible to Canada on the basis of criminal convictions outside Canada. However, paragraph 36(3)(c) provides that persons to whom paragraph 36(1)(b) applies are not inadmissible if, after the prescribed period, they satisfy the MCI that they have been rehabilitated. 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for … (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or … 36. (3) The following provisions govern subsections (1) and (2): … (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] 36. (3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) : […] c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, à l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-7", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 18", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 101 of IRPA describes claims that are not eligible to be referred to the RPD. These include claims for refugee protection by claimants who are inadmissible to Canada for serious criminality under subsection 36(1) and whom the MCI believes are a danger to the public in Canada. 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless … (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. 101. (1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) — , grande criminalité ou criminalité organisée.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-8", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 18–20", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : […] b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada.\n\nEven when a claim is not ineligible to be referred to the RPD under section 101, in some situations the RPD must reject it. Article 1F (b) of the Convention, which section 98 of IRPA incorporates into IRPA by reference, sets out the situation relevant to the present appeal. 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.\n\nArticle 1F (b) of the Refugee Convention provides as follows. 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: … (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; … 1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : […] b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; […]", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-9", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 21", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although excluded from refugee status by the above provisions and subject to a removal order on the ground of inadmissibility, a claimant may apply to the MCI for a pre-removal risk assessment (PRRA). However, paragraph 112(3)(c) provides that applicants for protection on a PRRA cannot be granted protection as refugees as defined by section 96 if their claim for refugee protection was rejected pursuant to Article 1F. Paragraph 113(d)(i) states that an immigration officer will consider the PRRA of these applicants for protection on the basis of the risk factors set out in section 97 (death, torture, or cruel and unusual treatment or punishment) and whether they are a danger to the public in Canada. Even if denied refugee status by subsection 112(3), successful applicants for a PRRA can obtain a stay of removal by virtue of subsection 114(1). 112. … (3) Refugee protection may not result from an application for protection if the person … (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; … (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; … 113.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-10", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 21", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Consideration of an application for protection shall be as follows: … (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or … 112. […] (3) L’asile ne peut être conféré au demandeur dans les cas suivants : […] b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; […] 113. Il est disposé de la demande comme il suit : […] d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, […] 114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. 114.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-11", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 21–23", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. F. ANALYSIS (i) Standard of review\n\nMr Febles argues that correctness is the standard of review applicable to the RPD’s interpretation of Article 1F (b) of the Convention, which is incorporated into IRPA by section 98, the RPD’s enabling statute. Although reasonableness is now presumed to be the standard of review normally applied to a tribunal’s interpretation of its enabling statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39), Mr Febles submits that the presumption of reasonableness is rebutted in this case.\n\nThe Minister takes no position on this issue, arguing that the appeal must fail whichever standard of review applies, and that it is therefore unnecessary for the Court to decide the issue. Federal Court jurisprudence on the standard of review applicable to the RPD’s interpretation of Article 1F (b) is not settled. For example, the Application Judge in the present case applied the reasonableness standard, while in Feimi v. Canada (Minister of Citizenship and Immigration), 2012 FC 262, the companion case before us, a different Application Judge applied correctness. The existence of this kind of uncertainty is sufficient reason for this Court to decide the standard of review applicable to the RPD’s interpretation of Article 1F (b).", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-12", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 24–26", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "I agree with Mr Febles that the normal presumption that reasonableness is the standard of review applicable to tribunals’ interpretation of their enabling statute does not apply in this case. Article 1F (b) is a provision of an international Convention that should be interpreted as uniformly as possible: see, for example, Jayasekara at para. 4. Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting Article 1F (b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness. Further, the interpretation of Article 1F (b) does not give rise to any ambiguity.\n\nAccordingly, the prior jurisprudence of this Court applying the correctness standard of review to the RPD’s interpretation of Article 1F (b) should be regarded as having satisfactorily resolved the issue: Dunsmuir para. 62. (ii) Is rehabilitation or present dangerousness relevant to deciding if a non-political crime is “serious”?\n\nMr Febles concedes that a crime punishable by a maximum of 10 years’ imprisonment if committed in Canada is presumed by Canadian courts to be “serious” for the purpose of Article 1F (b), and that the crimes of which he was convicted in the United States fall into this category.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-13", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 27–29", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, he argues that the seriousness of a crime must be assessed as of the time when the exclusion issue comes to be decided. Mr Febles submits that the purpose of Article 1F (b) relevant to the present case is to protect receiving states from having to grant refugee status to dangerous criminals. Consequently, a crime should not normally be regarded as “serious” if the claimant has served the sentence imposed and is no longer dangerous. Accordingly, the RPD erred in law when it failed to consider his rehabilitation after 1993 and whether he currently posed a danger to the Canadian public.\n\nThe Application Judge regarded Jayasekara as precluding the RPD from considering whether Mr Febles was rehabilitated and currently dangerous. Mr Febles argues that Jayasekara does not resolve the issue because it is either distinguishable or wrong and should not be followed. (a) What Jayasekara decided\n\nThe certified question put to the Court in Jayasekara was whether the fact that a refugee claimant who had committed a serious crime outside Canada had served his sentence enabled him to avoid the application of Article 1F (b). After examining Canadian and international jurisprudence on the issue, the Court answered the question in the negative.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-14", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 30–32", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the heart of the Court’s reasoning in Jayasekara is contained in paragraph 44 of the reasons where, writing for the Court, Létourneau J.A. said: I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F (b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction. … In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin. …. [Emphasis added]\n\nAn argument that a crime may be regarded as less serious years after its commission because the claimant is rehabilitated and is no longer a danger to the public would seem inconsistent with this passage. Rehabilitation is indisputably a factor “extraneous to the facts and circumstances underlying the conviction”. It is therefore not to be balanced against the presumed seriousness of the crime arising from the fact that, if committed in Canada, the crime is punishable by a maximum of at least 10 years’ imprisonment.\n\nHowever, Mr Febles says that, while Jayasekara decides that completing a sentence does not in itself remove a claimant from the application of Article 1F (b), it is still a factor that the RPD may consider. If the RPD may consider sentence completion, he argues, it may also consider other post-conviction facts, including rehabilitation.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-15", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 33–35", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this regard, Mr Febles points to paragraph 41 of the reasons of Létourneau J.A., where he stated that if the length or completion of a sentence is to be considered under Article 1F (b), “it should not be considered in isolation.” However, I cannot attach the same significance as Mr Febles to this single reference to the completion of a sentence.\n\nFirst, the discussion following paragraph 41 explains why the length of a sentence is an unreliable guide to the seriousness of a crime, and hence is often of little value on assessing the seriousness of the crime. The completion of a sentence is not even mentioned in this discussion. Second, neither the length nor completion of a sentence is included in the factors listed in paragraph 44 that may rebut the presumption of seriousness arising from the maximum sentence that could be imposed if the crime had been committed in Canada. Third, to interpret Jayasekara as allowing members of the RPD the discretion to consider completion of a sentence would likely lead to a lack of consistency in RPD decision-making bordering on arbitrariness.\n\nIn short, I agree with Justice Mosley in Camacho v. Canada (Minister of Citizenship and Immigration), 2011 FC 789 at para. 16, that it follows from the reasoning in Jayasekara that the mitigating circumstances to be considered by the RPD when determining whether a crime is “serious” for the purpose of Article 1F (b) do not include whether the claimant is rehabilitated and a danger to the public in Canada. These considerations are “extraneous to the facts and circumstances underlying the conviction”. (b) Should Jayasekara be followed?", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-16", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 36–38", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the alternative, Mr Febles says that the reasoning in Jayasekara is flawed and should not be followed. He identifies what he says are two errors in the Court’s reasoning. First, the Court erred in distinguishing Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.) (Chan) on the ground that there had been a material amendment to the legislation after Chan was decided. Second, the authorities cited for the propositions contained in paragraph 44 do not in fact support them.\n\nIn order to deal with the first point, it is necessary to briefly retrace the history of the interpretation of Article 1F (b) by this Court.\n\nChan held that Article 1F (b) applied to refugee claimants who were seeking to avoid extradition from Canada, and not to those who had been convicted of a crime outside Canada and had served their sentence before arriving here. To interpret the exclusion clause as applicable to the latter category of claimants would, said the Court, conflict with the scheme of the legislation, and operate to automatically deny that person’s right to a refugee hearing, regardless of [the person’s] attempts at rehabilitation and whether or not [they] constitute a danger to the Canadian public. In particular, the Court noted that criminality does not automatically render individuals inadmissible if the MCI is satisfied that they are rehabilitated. In the passage quoted above the Court may have left open the possibility that convicted criminals who have served their sentence could be excluded by Article 1F (b) if they were a danger to the public in Canada.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-17", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 39–40", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "This Court subsequently took a broader view of Article 1F (b) than that advanced in Chan. Thus, in Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, the claimant relied on Chan to argue that Article 1F (b) did not apply to him because he could not be extradited for the crimes that there were serious reasons for considering that he had committed, namely, being complicit by association in serious non-political crimes committed by an organization in which he had a leadership role.\n\nThe Court did not agree. Writing for the majority, Nadon J.A. said (at paras. 66 and 79 in particular) that a refugee claimant could be excluded under Article 1F (b) when there were serious reasons for considering that he had committed a serious non-political crime. It was not relevant for this purpose, he said, that the claimant could not be extradited because, for example, Canada had not concluded an extradition treaty with the state where the claimant’s crime was allegedly committed, or a specific crime could not be attributed to the claimant.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-18", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 41–42", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In concurring reasons, Décary J.A. (at paras. 118-129) reviewed the various purposes that Article 1F (b) was intended to serve, including (at para. 118) … ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. He further explained this purpose by saying (at para. 119): … [It] indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This … purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum.\n\nI should point out that, unlike Mr Febles, Zrig had not been convicted of any crime, much less served a sentence. Hence, in formulating his understanding of the purposes of Article 1F (b), Décary J.A. was not addressing the specific question at issue in the present appeal, namely, whether Article 1F (b) applies to a refugee claimant who has completed a sentence for a crime which, if committed in Canada, is punishable by a maximum of at least 10 years’ imprisonment, but who poses no danger to the public.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-19", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 43–45", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is thus clear from Zrig that, even before Jayasekara was decided, the Court had disavowed the holding in Chan that Article 1F (b) only extends to preventing a refugee claimant from avoiding extradition. Jayasekara hammered another nail into Chan’s coffin by deciding that Article 1F (b) does not cease to apply because the claimant has been convicted of a serious crime and has completed the sentence. This conclusion had been foreshadowed by Décary J.A. in Zrig, where he said (at para. 129) that Article 1F (b) enabled a state to exclude perpetrators of serious crimes, whether or not they had been convicted and served the sentences imposed on them.\n\nFurther, by excluding facts “extraneous to the facts and circumstances underlying the conviction” from the factors to be considered in assessing the seriousness of the crime, the Court in Jayasekara in effect overruled the holding in Chan that Article 1F (b) does not exclude a claimant who has completed his sentence, unless, perhaps, the claimant poses a danger to the public in Canada.\n\nI am willing to assume for present purposes that the Court in Jayasekara erred in saying that statutory amendments had undermined the conclusion in Chan that a wider reading of Article 1F (b) was inconsistent with the scheme of the statute. Nonetheless, this error is an insufficient basis for finding that the decision in Jayasekara was wrongly decided and should not be followed. Having approved the multiple purposes of Article 1F (b) that Décary J.A. identified in Zrig and having reviewed international jurisprudence, the Court clearly intended to restate the applicable law. In these circumstances, the error alleged is not material. In the light of Zrig and Jayasekara, it is clear that Chan is no longer good law.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-20", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 46–48", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nor do I agree with Mr Febles’ second ground for saying that Jayasekara was wrongly decided, namely that the cases cited by the Court in Jayasekara do not support the propositions in paragraph 44 of the reasons. In my view, only one of those cases (Miguel-Miguel v. Gonzales, 500 F.3d 941) was arguably not directly on point. This is not a basis on which Jayasekara can be said to have been wrongly decided. (c) Interpreting Article 1F (b)\n\nThis is sufficient to dispose of the appeal. Nonetheless, because the parties have fully canvassed the meaning of Article 1F (b) as it appears in IRPA, and the issue is important, I shall address Mr Febles’ broader argument that Jayasekara should not be followed because it rests on a fundamental misunderstanding of the purposes of Article 1F (b) and renders incoherent the scheme of IRPA with respect to criminality.\n\nMr Febles’ argument is that Article 1F (b) applies first and foremost to refugee claims by fugitives from justice in the country where they are suspected of having committed a serious non-political crime. It was intended to apply only exceptionally to those who have completed their sentence, that is, when they pose a continuing danger to the receiving state.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-21", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 49–51", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "This position is supported by the United Nations High Commissioner for Refugees, (UNHCR) Guidelines on International Protection: Application of Exclusion Clause: Article 1F of the Convention relating to Refugees, (HCR/GIP/03/05, 4 September, 2003) (Guidelines). Paragraph 23 of the Guidelines states that a claimant’s expression of regret for the crime may be considered in determining whether exclusion is justified. The UNHCR’s Handbook on Procedures and Criteria for determining Refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979) also indicates that Article 1F (b) was intended to protect receiving states from having to afford refugee protection to dangerous criminals: see paras. 148 and 157.\n\nThese documents are not determinative of the interpretation of the Convention. In my view, on the basis of the text of Article 1F (b), its known purposes, the scheme of IRPA, and international jurisprudence, Article 1F (b) should be interpreted as excluding rehabilitation and present dangerousness from the assessment of the seriousness of a crime committed by a refugee claimant before coming to Canada. (i) text\n\nArticle 1F (b) applies to “a serious crime of a non-political nature”. It is drafted in very broad terms. Unlike other provisions of IRPA, Parliament has not expressly limited the application of the Article to claimants who pose a current danger to the Canadian public. Courts should normally avoid an interpretation of legislation that requires words to be read into it: R. v. McIntosh, [1995] 1 S.C.R. 686 at para. 26; and see S. v. Status Appeals Authority, [1998] 2 NZLR 291 (CA) applying this interpretative principle to Article 1F (b).", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-22", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 52–55", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the ordinary meaning of the text of Article 1F (b) is that whether a crime is serious for exclusion purposes is to be determined on the basis of the facts listed by this Court in Jayasekara. The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public. (ii) purposes\n\nThe interpretation of statutory language must always be considered in light of the purposes of the provision in question. However, when the meaning of a statute seems clear and unequivocal from its text, statutory purpose may be less important in the interpretative exercise, although “the court must always seek to read the provisions of an Act as a harmonious whole”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10.\n\nMr Febles’ central argument is that because he has served his sentence, and is therefore not a fugitive from justice in the United States, the only purpose of Article 1F (b) relevant to the facts of this case is the protection of the public in Canada from currently dangerous criminals.\n\nAccordingly, he says, the RPD could only have found that he was excluded from refugee status after considering whether he was rehabilitated and currently posed a danger to the public in Canada. An interpretation of Article 1F (b) to include non-fugitives who are rehabilitated and pose no danger to the host state would, he argues, be inequitable.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-23", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 56–58", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "I do not agree. In my view, Mr Febles’ argument oversimplifies the purposes underlying Article 1F (b). In Jayasekara, Létourneau J.A. quoted with approval (at para. 28) the description of the various purposes of Article 1F (b) identified by Décary J. A. in Zrig, which I have set out at paragraph 41 of these reasons.\n\nDécary J.A. was not, of course, dealing with the issue raised by the present appeal. It is not altogether clear whether he was of the view that the purposes of Article 1F (b) requires a discrete consideration of the claimant’s present dangerousness, or whether he considered that the dangerousness of a claimant was inherent in the nature of the crime committed.\n\nHowever, the issue now before us has recently been addressed by the European Court of Justice and the German Federal Administrative Court in a case involving a refugee claimant who had not completed his sentence in Turkey before he went to Germany and claimed refugee status. The Courts stated that Article 1F (b), which is incorporated into the law of the European Union by Directive 2004/83/EC, does not require that a refugee claimant with a serious criminal conviction must also pose a present danger to the receiving state. Because international law should be interpreted as uniformly as possible, this Court should attach significant weight to pronouncements by senior courts in other jurisdictions on the very issue that is before us.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-24", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 59", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, in B (Area of Freedom, Security and Justice), [2010] EUECJ C-57/09 (B), the European Court wrote (at para. 104): … the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State. [Emphasis added]", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-25", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 60", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The German Federal Administrative Court (BVerwG 10 C 48.07 OVG 8 A 2632/06.A, October 14, 2008), which had referred B to the European Court, delved deeper into the purposes underlying Article 1F (b) by examining its legislative history. Thus, it wrote (at paras. 29-30): [The exclusion clauses] are intended to protect refugee status from abuse, by keeping it from being granted to undeserving applicants. … According to the Travaux Préparatoires [of the Convention], the fundamental difference between reasons for exclusion – tied to previous personal misconduct – and the exceptions from the non-refoulement imperative – intended to protect the host state – was evident in the deliberations. In the case of the exclusion clauses, the deciding factor for the representatives of the states was not whether the refugee currently posed a danger, but the distinction between ‘bona fide’ and criminal refugees. … The group of persons covered by the exclusion clauses because of their misconduct, was not to be set on a par with ‘bona fide refugees.’ The intent was to prevent refugee status from being discredited by including criminals in the group of recognised refugees (‘refugees whose actions might bring discredit on that status’…). There is no support in either the background materials to the Geneva Refugee Convention or the international practice of nations for the UNHCR’s opinion that the aim and purpose of considering a serious non-political crime a reason for exclusion is to protect the community of a receiving country from the danger as admitting a refugee who has committed a serious common crime. [Emphasis added]", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-26", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 61–63", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Court stated its conclusion succinctly (at para. 28): Mere ‘unworthiness for protection’ on the basis of prior acts suffices for the application of the exclusion clauses; it is not necessary that the foreigner should still pose such dangers as he manifested in his previous conduct.\n\nI agree that it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice. However, I am less sure than the Courts in B that the Travaux Préparatoires conclusively demonstrate that the drafters intended to exclude other refugee claimants with a serious criminal record, even though they were rehabilitated and not a danger. Much of the discussion involved the definition of the crimes that would exclude a claimant from refugee status, and the concern of the United Kingdom Delegate that individuals who had committed a minor offence should not be excluded. On the other hand, I do not see in the Travaux Préparatoires evidence of an intention on the part of the Delegates only to exclude from refugee status criminals convicted of a serious crime who have served their sentence if they remain dangerous.\n\nI conclude, therefore, that the purposes underlying Article 1F (b) do not so clearly limit its intended scope to protecting the state of refuge from currently dangerous criminals as to warrant an interpretation that is markedly narrower than the ordinary meaning of the text. (iii) statutory context", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-27", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 64–66", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr Febles argues that a theme running through IRPA is that the adverse consequences that flow from serious criminality can be mitigated if the claimant satisfies the MCI that she is rehabilitated. Thus, he says, it would be inconsistent with the statutory scheme of IRPA to interpret Article 1F (b) as excluding from refugee status those who have committed serious crimes outside Canada, regardless of how long ago the crimes were committed or whether they are rehabilitated and currently pose no danger to the public.\n\nThe problem with this argument, in my view, is that it pays insufficient attention to the different purposes served by the provisions in question. A claim is ineligible even to be referred to the RPD for adjudication if the claimant is inadmissible for serious criminality by virtue of a conviction outside Canada and the Minister is of the opinion that the claimant is a danger to the public in Canada: IRPA, paragraphs 101(1)(f), and (2)(b). A purpose of this provision is to enable the speedy removal from Canada of dangerous persons: Harris v. Canada (Minister of Citizenship and Immigration), 2001 FCA 235, [2001] 4 F.C. 495 at para. 28.\n\nThere is no inconsistency between a CBSA officer’s decision not to seek an opinion from the MCI on whether Mr Febles’ claim was ineligible to be referred to the RPD because of his present dangerousness, and the decision of the MPSEP to intervene at the RPD to argue that Article 1F (b) excludes Mr Febles from the refugee definition because of his convictions. The tests for ineligibility and exclusion are simply not the same.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-28", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 67–69", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Dangerousness to the Canadian public is also relevant under IRPA’s provisions on pre-removal risk assessment. Thus, under the statutory provisions relevant to the present case, a claim for protection by Mr Febles, a person inadmissible by reason of serious criminality, would be considered by the MCI on the basis of the risks set out in section 97 of IRPA, and whether he is a danger to the public: paragraphs 112(3)(b) and 113(d)(i). Thus, protecting the public from convicted criminals who still pose a danger to Canada may trump a claim for protection.\n\nIf an application by Mr Febles for protection were allowed on a PRRA, on the ground that the personal risks that he would face if returned outweighed the risk to the Canadian public if he remained, his removal would be stayed: paragraph 114(1)(b). Further, section 7 of the Canadian Charter of Rights and Freedoms (Charter) will normally also prevent the MCI from removing an individual to a country where their Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 58.\n\nApplying for and obtaining a stay of removal from the MCI under the PRRA provisions may not be as satisfactory to Mr Febles on grounds of process and substance as an application to the RPD for the grant of refugee protection and the rights attached to that status. Nonetheless, protection would comply with the non-refoulement principle for those who are excluded from refugee status for serious criminality, but if removed are at risk of death, torture, cruel and unusual treatment or punishment, or the deprivation of other rights guaranteed by section 7 of the Charter.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-29", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 70–73", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The availability of protection under the PRAA provisions for non-dangerous criminals thus goes a long way to answering Mr Febles’ argument that it is inequitable to exclude individuals from refugee protection on the basis of their criminal record and the surrounding facts without any consideration of whether they are currently dangerous.\n\nMr Febles also argues that the broad interpretation of Article 1F (b) is inconsistent with the provision that individuals are not inadmissible under subsection 36(1) of the IRPA if they satisfy the MCI that they are rehabilitated and meet the criteria prescribed in paragraph 36(3)(c). It suffices to say that the purposes served by the inadmissibility provisions are different from those of Article 1F (b).\n\nFor example, one reason for the exclusion of claims for refugee protection by those who have committed serious crimes appears to be to protect the integrity of refugee status, a purpose for which an assessment of their current dangerousness is irrelevant. In addition, as already noted, those excluded from refugee status on the ground of serious criminality may still be permitted to remain in Canada if facing any of the specified risks in the country to which they would otherwise be removed.\n\nIn summary, there is, in my view, no inconsistency between a broad interpretation of Article 1F (b) and other provisions of the IRPA dealing with criminality that would warrant interpreting the broad language of Article 1F (b) in the limited manner urged by Mr Febles. The scheme of IRPA suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly. G. CONCLUSIONS", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-30", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 74–77", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "For these reasons, I would dismiss the appeal and answer the certified question as follows. Question: When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue? Answer: No. “John M. Evans” J.A. “I agree K. Sharlow J.A.” STRATAS J.A. (Concurring Reasons)\n\nI wish to comment on my colleague’s discussion of the standard of review (paragraphs 22-25 of his reasons). In particular, I wish to address the suggestion that the need for uniformity in the interpretation of Article 1F (b) is a factor in favour of correctness review.\n\nWorld-wide uniform interpretations of the provisions in international conventions may be desirable. However, that depends on the nature of the provision being interpreted and the quality and acceptability of the interpretations adopted by foreign jurisdictions. For example, foreign interpretations may not always embody values and principles to which we subscribe. I do not read paragraph 4 of Jayasekara, supra as saying something different on this.\n\nIn particular cases, our courts are well-placed to assess whether their decisions should conform to foreign decisions. But some of our tribunals are equally well-placed to assess that – sometimes even better-placed – armed as they are with specialized understandings, policy appreciation, and expertise. In some cases, reasonableness review, not correctness review, may be warranted.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-31", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 78–81", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.\n\nIn the end, the choice of standard of review makes no practical difference in this case: ● Reasonableness review. The cogent reasons offered by my colleague amply demonstrate that the RPD’s interpretation of Article 1F (b) is well within the range of the acceptable and defensible and, therefore, passes muster under reasonableness review. ● Correctness review. The standard of review was not specifically addressed in Jayasekara, supra, but I agree that the reasoning in it smacks of correctness review. If, as my colleague suggests, the standard of correctness review is to be adopted in this case in accordance with paragraph 62 of Dunsmuir, supra, his reasoning amply demonstrates the correctness of the RPD’s decision.\n\nFor this reason, I agree with the Minister’s submission that we need not determine the standard of review in this case.\n\nSubject to these comments, I concur with my colleague’s reasons. “David Stratas” J.A. FEDERAL COURT OF APPEAL", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-36253-1", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 1–2", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a decision of Strayer J. of the Federal Court (judge) who dismissed the appellant’s application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board). The judge certified the two following questions for analysis by this Court: 1. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? 2. If the answer to question 1 is affirmative, if a person is forced to leave the country where the crime was committed prior to the completion of his sentence, does this have the effect of deeming the sentence to have been served? In application of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the exclusion clause in Article 1F(b) of the Convention, the Board found that the appellant was not a Convention refugee or a person in need of protection. In addition, the Board ruled that the appellant was not credible and did not meet the criteria of the Convention. There is no appeal from this second finding of the Board. From that perspective, the appeal is moot.\n\nHowever, a person who, pursuant to section 98 of the IRPA, is excluded as a Convention refugee on the basis of Article 1F(b) of the Convention, cannot obtain refugee protection. This results from the combined effect of paragraphs 95(1)(c) and 112(3)(c) of the IRPA.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-2", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 3–5", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, while that person can still apply to the Minister of Citizenship and Immigration (Minister) for protection if subject to a removal order, he or she cannot obtain permanent resident status. Pursuant to paragraph 114(1)(b) of the IRPA, the Minister’s decision to allow the application for protection merely has the effect of staying the removal order. In view of these consequences on a claimant, I believe that this Court should address the certified questions.\n\nSection 98 of the IRPA and the interpretation to be given to the word “serious” in the terms “serious non-political crime” found in Article 1F(b) of the Convention carry with them an international dimension. As Lord Llyod of Berwick said in T v. Secretary of State for the Home Department, [1996] 2 All ER 865, at p. 891, “in a case concerning an international convention, it is obviously desirable that decisions in different jurisdictions should, so far possible, be kept in line with each other”. For this reason, we requested the parties provide us with additional submissions containing references to the international jurisprudence on this question.\n\nMore specifically, the parties were asked to provide references: a) as to whether the seriousness of a non-political crime within the meaning of Article 1F(b) of the Convention is determined solely by reference to the maximum sentence that can be imposed for the particular crime as provided in the domestic law of the country of refuge; or b) whether, in making the determination, the facts relating to the nature and seriousness of the acts committed may or must be taken into account. The parties were given until November 7, 2008 to complete their submissions.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-3", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before stating the facts, I reproduce the relevant provisions: Convention Article 1. Definition of the term “refugee” F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. Article premier. -- Définition du terme « réfugié » F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. [Emphasis added] IRPA PART 1 - IMMIGRATION TO CANADA Division 4 - Inadmissibility Serious criminality 36.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-4", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. PART 2 - REFUGEE PROTECTION Division 1 - Refugee Protection, Convention Refugees and Persons in Need of Protection Conferral of refugee protection 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. … Convention refugee 96.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-5", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Exclusion — Refugee Convention 98.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-6", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. … Ineligibility 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). Serious criminality (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. … Division 3 - Pre-removal Risk Assessment Protection Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-7", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "… Restriction (3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1). Consideration of application 113. Consideration of an application for protection shall be as follows: … (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. Effect of decision 114.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-8", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. PARTIE 1 - IMMIGRATION AU CANADA Section 4 - Interdictions de territoire Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans. PARTIE 2 - PROTECTION DES RÉFUGIÉS Section 1 - Notions d’asile, de réfugié et de personne à protéger Asile 95.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-9", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). […] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne à protéger 97.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-10", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne à protéger (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. […] Irrecevabilité 101.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-11", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) – , grande criminalité ou criminalité organisée. Grande criminalité (2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : a) une déclaration de culpabilité au Canada pour une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et pour laquelle un emprisonnement d’au moins deux ans a été infligé; b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada. […] Section 3 - Examen des risques avant renvoi Protection Demande de protection 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-12", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] Restriction (3) L’asile ne peut être conféré au demandeur dans les cas suivants : a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée; b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; d) il est nommé au certificat visé au paragraphe 77(1). Examen de la demande 113. Il est disposé de la demande comme il suit : […] c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98; d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada. Effet de la décision 114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. [Emphasis added] The facts", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-13", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 7–12", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The facts can be summarized as follows. The appellant, Mr. Ruwan Chandima Jayasekara, is a Sri Lankan citizen of Sinahalese ethnicity. He was allegedly targeted in Sri Lanka by the Tamil Tigers. He arrived in the United States in 1998 and lived there without status until 2004.\n\nIn January 2004, he was arrested in New York State on drug charges and pled guilty to the “criminal sale of the controlled substance opium in the third degree” and to criminal possession of marijuana. In March 2004, he was convicted and sentenced to 29 days in jail and a 5 year probation period.\n\nOne month after completing his jail term, he attended an immigration hearing and was issued a voluntary departure order to leave the United States by October 2004.\n\nOn July 5, 2004, he entered Canada and claimed refugee protection. He did not apply to his probation office to obtain permission to leave the jurisdiction of the United States and a warrant for his arrest as an absconder was issued on July 27, 2004. The Board’s decision\n\nThe Board heard the appellant’s refugee claim on April 12 and September 15, 2006. As previously mentioned, it found that he was excluded from refugee protection under section 98 of the IRPA and Article 1F(b) of the Convention because there were serious reasons for considering that he had committed a serious non-political crime outside of Canada and that he had not completed his sentence as he fled the United States during his probation.\n\nMoreover, it found that, even if the appellant was not excludable under Article 1F(b) of the Convention, he did not meet the criteria for either Convention refugee status or as a person requiring protection. These findings based on credibility are not contested.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-14", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 13–16", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant sought judicial review before the Federal Court only of his exclusion under section 98 of the IRPA and Article 1F(b) of the Convention. The Federal Court decision\n\nThe judge reviewed the Board’s decision on the standard of reasonableness because, at the core of it, the question of the exclusion under section 98 of the IRPA and Article 1F(b) of the Convention was one of mixed fact and law which involved some degree of discretion: see paragraph 10 of the reasons for judgment.\n\nHe was also of the view that it was reasonable for the Board to conclude that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non-political crime outside the country. He found that conclusion to be reasonable because the offence committed by the appellant would carry a maximum sentence of life imprisonment in Canada. At paragraph 11 of the reasons for judgment he wrote: It was perfectly reasonable for the Board to use as a measurement of a “serious” crime the view which Canadian law takes of that offence, not the seriousness of the penalty imposed in the United States.\n\nWith respect to the certified questions, the judge ruled that the appellant had not completed his sentence in the United States as he voluntarily left that country with most of his five years probation unserved.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-15", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 17–18", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, addressing the appellant’s contention that Article 1F(b) of the Convention is inapplicable to persons who have served their sentence abroad before coming to Canada, the judge reviewed the decisions of our Court in Chan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1180 and Zrig v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565. He concluded that the Board was still right to have excluded the appellant under Article 1F(b) of the Convention, even if he were deemed to have constructively served his sentence in the United States. The purpose of Article 1F(b) of the Convention\n\nThe purpose of Article 1F(b) of the Convention was considered by our Court in the Chan and Zrig decisions. Counsel for the appellant submits that Chan is still good and applicable law. He argued that Chan established a general principle that a person who has served his sentence should not be excluded under Article 1F(b) of the Convention.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-16", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 19–20", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant relies upon the following statement of Robertson J.A., at paragraph 4 of the reasons for judgment in Chan: Assuming without deciding that the appellant’s conviction qualifies as a serious non-political crime, it is clear to me that Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country. I rest this conclusion on two grounds. First, obiter comments of Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (writing for the majority) and Justice La Forest in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, fully support this interpretation of Article 1F(b), as do the writings of academic commentators. Second, any other interpretation is in conflict with the statutory scheme set out in the Immigration Act.\n\nIn that case, our Court had to reconcile the terms of Article 1F(b) of the Convention with then subparagraphs 46.01(1)(e)(i) and 19(1)(c.1)(i) of the former Immigration Act, R.S.C. 1985, c. I-2, as amended (former Act).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-17", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 21", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "These provisions of the former Act read: Access Criteria 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person … (e) has been determined by an adjudicator to be (i) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, 19. (1) Inadmissible Persons – No person shall be granted admission who is a member of any of the following classes: … (c.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or … except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission as the case may be; Critères de recevabilité 46.01 (1) – La revendication de statut n’est pas receivable par la section du statut si l’intéressé se trouve dans l’une ou l’autre des situations suivantes : […] (e) L’arbitre a décidé, selon le cas : (i) qu’il appartient à l’une des catégories non admissibles visées à l’alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada, 19.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-18", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 21–24", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Personnes non admissibles – Les personnes suivantes appartiennent à une catégorie non admissible : […] c.1) celles dont il y a des motifs raisonnables de croire qu’elles ont, à l’étranger : (i) soit été déclarées coupables d’une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d’une loi fédérale, d’un emprisonnement maximum égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu’au moins cinq ans se sont écoulés depuis l’expiration de toute peine leur ayant été infligée pour l’infraction ou depuis la commission du fait; [Emphasis added]\n\nPursuant to section 46.01, a person who was inadmissible to Canada could not have his or her claim determined by the Refugee Division. In other words, he or she was excluded from a refugee hearing before the Refugee Division.\n\nHowever, subparagraph 19(1)(c.1)(i) created an exception to the inadmissibility to Canada of persons convicted outside of Canada for a crime that could be punishable in Canada by a maximum term of imprisonment of ten (10) years or more.\n\nAs a matter of fact, a person convicted of such crimes could still be eligible for refugee protection and have his or her claim determined by the Refugee Division if the Minister was satisfied that that person had rehabilitated himself or herself and that five years had elapsed since the expiration of the sentence imposed or since the commission of the act or omission.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-19", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 25–27", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "In order to give meaning to the rehabilitation provisions of the former Act, Robertson J.A. found in Chan that Article 1F(b) of the Convention could not be given an interpretation which would have resulted in a blanket exclusion of those who had been found guilty of serious crimes as defined in the Act. Such interpretation would have deprived a claimant of the protection offered by the exception to the inadmissibility rule. I should add, it would have also divested the Minister of his discretionary power under paragraph 19(1)(c.1) of that Act.\n\nIn my respectful view, the decision in Chan stands for the proposition that, under the existing law at the time, which, as we will see, has now been modified by the IRPA, a claimant who was convicted of a serious non-political crime and who served his sentence was not necessarily excluded from a refugee hearing or rendered ineligible to apply for the refugee protection afforded by the Convention. He or she remained entitled to have their refugee claim determined by the Refugee Division if the Minister concluded that the claimant was rehabilitated and was not a danger to the public.\n\nWhile the decision in Chan afforded some protection to a claimant and safeguarded the Minister’s discretion, it did not then, nor does it now, in my respectful view, stand for the proposition that, whatever the circumstances, a country cannot exclude an applicant who was convicted and served his sentence.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-20", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 28", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The purpose stated in Chan is neither the only nor, as contended by the appellant, necessarily the primary purpose sought by the exclusion contained in Article 1F(b) of the Convention. This is made clear by the subsequent decision of our Court in Zrig. In this respect, our colleague Décary J. wrote at paragraphs 118 and 119 of that decision: Purposes of Article 1F of the Convention in general, and Article 1F(b) in particular [118] My reading of precedent, academic commentary and of course, though it has often been neglected, the actual wording of Article 1F of the Convention, leads me to conclude that the purpose of this section is to reconcile various objectives which I would summarize as follows: ensuring that the perpetrators of international crimes or acts contrary to certain international standards will be unable to claim the right of asylum; ensuring that the perpetrators of ordinary crimes committed for fundamentally political purposes can find refuge in a foreign country; ensuring that the right of asylum is not used by the perpetrators of serious ordinary crimes in order to escape the ordinary course of local justice; and ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. It is this fourth purpose which is really at issue in this case. [119] These purposes are complementary. The first indicates that the international community did not wish persons responsible for persecution to profit from a convention designed to protect the victims of their crimes.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-21", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 28–29", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The second indicates that the signatories of the Convention accepted the fundamental rule of international law that the perpetrator of a political crime, even one of extreme seriousness, is entitled to elude the authorities of the State in which he committed his crime, the premise being that such a person would not be tried fairly in that State and would be persecuted. The third indicates that the signatories did not wish the right of asylum to be transformed into a guarantee of impunity for ordinary criminals whose real fear was not being persecuted, but being tried, by the countries they were seeking to escape. The fourth indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This fourth purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum. [Emphasis added]\n\nI agree with this well documented statement of our colleague Décary J.A.: see also on the existence and scope of this fourth purpose Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, at paragraphs 94-95 (High Court of Australia); Tenzin Dhayakpa v. The Minister of Immigration and Ethnic Affairs, [1995] FCA 1653 (Fed. Ct. Australia) at paragraphs 27 to 29; Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, [1998] FCA 1314 (Fed. Ct. Australia). The purposes are complementary and, in my view, there is no ranking among them.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-22", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 30–34", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Some elements of the reasoning in Chan are still relevant under the IRPA because of the ineligibility rule applicable to refugee claimants under Part 2 of the IRPA, such as ineligibility for serious criminality: see subsections 101(1) and (2) of the IRPA.\n\nThere is, however, a notable difference between the IRPA and the former Act. Under paragraph 46.01(1)(e) and subparagraph 19(1)(c.1)(i) of the former Act, a claimant was ineligible for a refugee hearing if he was inadmissible to Canada on account of serious criminality unless, as previously stated, the Minister was satisfied that the claimant had rehabilitated himself or herself and five years had elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission (emphasis added).\n\nUnder the IRPA, the rule as to ineligibility has changed. By virtue of subsections 101(2), a claimant, who is inadmissible by reason of serious criminality, now remains eligible for a refugee hearing unless the “Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years” (emphasis added).\n\nIn other words, under the former Act, there was a rule of ineligibility for a refugee hearing if a claimant was inadmissible on account of serious criminality. That rule operated unless the exception applied. Under the IRPA the rule is reversed. A claimant remains eligible unless the exception applies.\n\nThe concept of “sentence served” remains relevant to the issue of admissibility to Canada by reason of paragraph 36(3)(c) of the IRPA which deals with rehabilitation.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-23", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 35–37", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "This brings me now to the determination of the first certified question and the role that domestic law plays or should play in the interpretation of the exclusion clause contained in Article 1F(b) of the Convention. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention\n\nCentral to the exclusion clause of Article 1F(b) of the Convention is the commission of a “serious” non-political crime. What does “serious” mean in that clause? What are the criteria for determining whether a claimant’s crime is serious within the meaning of Article 1F(b) of the Convention? What standards are applicable to that determination? International or local standards or both? Was the crime in the present instance serious enough to justify the application of the exclusion clause? These questions must now be addressed in the context of Article 1F(b) of the Convention. a) The standards applicable to the determination of the gravity of a crime\n\nThe UNHCR-issued Guidelines on International Protection (The UN Refugee Agency), at paragraph 38, suggest that the gravity of a crime be “judged against international standards, not simply by its characterization in the host State or country of origin”. This is, of course, to avoid the profound disparities which may exist between countries with respect to the same behaviour. As Branson J. wrote in Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, supra, at page 15 of his reasons for judgment, “one needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the “immodest” dress of women is regarded as seriously criminal”.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-24", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 38–39", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The UNHCR Guidelines propose, at paragraph 39, the following factors as relevant in determining the seriousness of a crime for the purpose of Article 1F(b) of the Convention: - the nature of the act; - the actual harm inflicted; - the form of procedure used to prosecute the crime; - the nature of the penalty for such a crime; and - whether most jurisdictions would consider the act in question as a serious crime. The Guidelines go on to give as examples of serious crimes the crimes of murder, rape, arson and armed robbery. They also refer to other offences which could be deemed to be serious “if they are accompanied by the use of deadly weapons, involve serious injury to a person or there is evidence of serious habitual criminal conduct and other similar factors”: ibidem, at paragraph 40. Reference here is clearly made to circumstances surrounding the commission of the crime which, the Guidelines submit, should be taken into account in assessing the seriousness of the crime.\n\nThe UNHCR Guidelines are not binding. Nor is the UN Handbook on Procedures and Criteria for Determining Refugee Status (under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees), Geneva, January 1988, although the Handbook can be relied upon by the courts for guidance: see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 713-714; Tenzin Dhayakpa, supra, at paragraph 27; Igor Ovcharuk, supra, at page 8; INS v. Aguirre-Aguirre, U.S. 1999, 1, at pages 10 and 11 (U.S. Supreme Court). I also agree that the Handbook cannot override the functions of the Court in determining the words of the Convention: see the reasons for judgment of Henry J. in S. v. Refugee Appeals Authority, [1998] 2 NZLR 291, at paragraph 20 (N.Z. C.A.).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-25", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 40–41", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "For the purpose of determining whether a person is ineligible to have his or her refugee claim referred to the Refugee Protection Division on the basis of “serious criminality”, paragraph 101(2)(b) of the IRPA requires a conviction outside Canada for an offence which, if committed in Canada would be an offence in Canada punishable by a maximum term of at least 10 years. This is a strong indication from Parliament that Canada, as a receiving state, considers crimes for which this kind of penalty is prescribed as serious crimes. In the case of a crime committed outside Canada, paragraph 101(2)(b) makes the length of the sentence actually imposed irrelevant. This is to be contrasted with paragraph 101(2)(a) which deals with inadmissibility by reason of a conviction in Canada. In this last instance, Parliament has seen fit to require that the offence be punishable by a maximum term of imprisonment of at least 10 years and that a sentence of at least two years has been imposed (emphasis added).\n\nI agree with counsel for the respondent that, if under Article 1F(b) of the Convention the length or completion of a sentence imposed is to be considered, it should not be considered in isolation. There are many reasons why a lenient sentence may actually be imposed even for a serious crime. That sentence, however, would not diminish the seriousness of the crime committed. On the other hand, a person may be subjected in some countries to substantial prison terms for behaviour that is not considered criminal in Canada.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-26", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 42–43", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Further, in many countries, sentencing for criminal offences takes into account factors other than the seriousness of the crime. For example, a player in a prostitution ring may, out of self-interest, assist the prosecuting authorities in the dismantling of the ring in return for a light sentence. Or an offender may seek and obtain a more lenient sentence in exchange for a guilty plea that relieves the victim of the ordeal of testifying about a traumatic sexual assault. Costly and time-consuming mega-trials involving numerous accused can be avoided in the public interest through the negotiation of guilty pleas and lighter sentences. The negotiations relating to sentences may involve undertakings of confidentiality, protection of persons and solicitor-client privileges. Access to the confidential, secured and privileged information may not be permitted, so that a look at the lenient sentence in isolation by a reviewing authority would provide a distorted picture of the seriousness of the crime of which the offender was convicted.\n\nWhile regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored in determining the seriousness of the crime. After all, as previously alluded to, the protection conferred by Article 1F(b) of the Convention is given to the receiving state or nation. The UNHCR Guidelines acknowledges as much: see paragraph 36 above.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-27", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 44–45", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada, supra, at paragraph 38; INS v. Aguirre-Aguirre, supra, at page 11; T v. Home Secretary (1995), 1 WLR 545, at pages 554-555 (English C.A.); Dhayakpa v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph 24.\n\nFor instance, a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-28", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 46–48", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence. b) Whether the crime in the present instance is serious and justified the application of the exclusion clause\n\nIt should be recalled that the appellant was convicted in the United States for trafficking a hard drug, namely opium.\n\nIt is not disputed that trafficking in narcotics and psychotropic substances can entail both human and economic consequences for society. As the evidence reveals, drug trafficking is treated as a serious crime across the international spectrum. In their book on The Refugee in International Law, 3rd ed., Oxford University Press, 2007, at page 179, G.S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view to promoting consistent decisions “proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery” (emphasis added).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-29", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 49–50", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "In accordance with the three United Nations Drug Conventions, i.e. the 1961 Single Convention on Narcotic Drugs (amended by the Protocol of 25 March 1972), 976 U.N.T.S. 105; the 1971 Convention Against Psychotropic Substances, 1019 U.N.T.S. 175; and the 1988 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, E/Conf. 82/15, signatory nations are required to coordinate preventive and repressive action against drug trafficking, including the imposition of penal provisions as necessary. The choice of penal provisions remains at the discretion of the Member State and may exceed those provided by the Conventions if the Member States deem them desirable or necessary for the protection of public health and welfare.\n\nAs reflected by the penal provisions enacted, most signatory states define and treat drug trafficking as a serious crime. In contrast to mere possession, drug trafficking is usually punishable by a period of incarceration. In this country, the sentence imposed for a drug trafficking offence carries a maximum time of 18 months for a summary conviction and up to a maximum of life imprisonment for an indictable offence depending on the substance trafficked: see the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-30", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 51", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "In other countries, the punishment is equal to or greater than ours and can include both incarceration and the imposition of fines. The United States also provides for a range of sentences depending on the substance trafficked, whether the consequence of trafficking included serious injury or death, and whether there were prior convictions. Overall, sentences can range from a minimum of one year to a life sentence and fines can be imposed from $100,000 to $20,000,000, depending on, as per the wording of the article, whether the offender is an individual or other than an individual: see 21 U.S.C. §841. In a recent case comparable to ours where the accused pleaded guilty to selling .26 grams of rock cocaine for $20, the US Court of Appeal for the 9th circuit upheld, in August 2007, the presumption that the accused had committed a particularly serious crime. The accused had been sentenced to the time served (36 days), a fine of $200 and a five-year probation period: see Miguel-Miguel v. Gonzales, supra.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-31", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 52–53", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Less severe, but similar punishment is legislated in England, Australia, New Zealand and France. Drug trafficking in the United Kingdom can lead to a maximum sentence of 3 to 12 months for summary conviction offences or a 400 to 2,500 pound fine or both. For indictable offences, the penalty is increased, ranging from 5 years to life imprisonment or a fine or both: see the Misuse of Drugs Act, 1971 (U.K.), 1971, c. 38, s. 4 and Schedule 4. Similarly, Australia permits a ten-year period of imprisonment or 2,000 penalty units or both: see Criminal Code Act, 1995 (Cth.), s. 302.4(1). New Zealand sets a range for indictable trafficking offences of a maximum of 8 years to life imprisonment depending on the substance and up to one year imprisonment or a fine of up to $1,000 for summary conviction offences: see Misuse of Drugs Act, 1975 (N.Z.), 1975/116, s. 6. Finally, France allows for 10 years of imprisonment and fines of 7.5 million euros when the trafficked drug is for resale as opposed to individual consumption: see the French Code Pénal, sections 222-237.\n\nIn this country, opium is classified in Schedule 1 and, according to paragraph 5(3)(a) of the Controlled Drugs and Substances Act, supra, a person who sells that substance is liable to imprisonment for life. There is no doubt that Parliament considers the trafficking of opium as a serious crime.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-32", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 54–55", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the United States, the behaviour of the appellant was classified a class B felony. The appellant, although a first offender, received a sentence of 29 days in jail and a five year probation period. A probation order, especially one of five years, is not necessarily a light sentence as it entails restrictions which can be severe on one’s liberty as well as conditions leading to penal consequences in case of breaches: see R. v. B. (M.), [1987] O.J. No. 726 (Ont. C.A.).\n\nIn determining whether the appellant had been convicted of a serious crime, the Board looked at: a) the gravity of the crimes (trafficking in opium and criminal possession of marijuana) under New York legislation which, even for a first offender, resulted in a jail term as well as a five year probation period; b) the sentence imposed by the New York court; c) the facts underlying the conviction, namely the nature of the substance trafficked and possessed, a traffic of opium in three parts, the quantity of drugs possessed and trafficked; d) the finding of this Court in Chan that a crime is a serious non political crime if a maximum sentence of ten years or more could have been imposed if the crime had been committed in Canada; e) the objective gravity of a crime of trafficking in opium in Canada which carries a possible penalty of life imprisonment; and f) the fact that the appellant violated his probation order by failing to report three times to his probation officer and eventually absconded.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-33", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 56–59", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "I believe that the judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non political crime outside the country. c) The answer to the first certified question\n\nThe answer to the following question: Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? is no.\n\nIn view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question. Conclusion\n\nFor these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us. “Gilles Létourneau” J.A. “I agree Karen Sharlow J.A.” “I agree J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-35786-1", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 1–3", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a judgment of Justice Mosley (2006 FC 1385). He dismissed the appellants’ application for judicial review of the decision of a pre removal risk assessment officer, who rejected their application for protection under subsection 112(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). An application under subsection 112(1) of the IRPA is referred to as a “pre removal risk assessment application” or a “PRRA application”.\n\nThe principal issue in this appeal is the interpretation of paragraph 113(a) of the IRPA. Paragraph 113(a) deals with the circumstances in which a failed refugee claimant who makes a PRRA application may present evidence to the PRRA officer that was not before the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board.\n\nJustice Mosley summarized, at paragraphs 10 through 12 of his reasons, his conclusions as to the standard of review applicable to a decision of a PRRA officer. Neither party suggested that he erred in his statement of the applicable standard of review, or that he failed to apply the appropriate standard of review. As that issue was not debated, I accept for the purposes of this appeal that the standard of review for questions of law is correctness, for questions of fact is patent unreasonableness, and for questions of mixed fact and law is reasonableness. In my view, nothing in this appeal turns on the standard of review.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-2", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 4", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Syed Masood Raza, his wife and their two children are citizens of Pakistan and members of the Shia minority in that country. Mr. Raza suffered attacks in 1994 at the hands of Sipah-e-Sahaba Pakistan extremists because of Mr. Raza’s participation in the religious and business affairs of the Shia community. He reported the attacks to the police, to no avail. Mr. Raza left Pakistan on October 3, 1994 and his family left the following December. They lived in Texas without status until 2003, when they came to Canada. Mr. Raza and his family sought refugee protection under the IRPA on the basis that he had been attacked because of his religious faith and that adequate state protection was not available.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-3", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 5", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The provisions of IRPA describing the conferral of refugee protection are sections 95, 96 and 97, which read in relevant part as follows (provisions referring to criminality and national security, which are not in issue in this case, have been omitted): 95. (1) Refugee protection is conferred on a person when 95. (1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) […] the Minister allows an application for protection. b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection […]. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), […] . (2) Est appelée personne protégée la personne à qui l’asile est conféré […] . 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, 96.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-4", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 5", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "A qualité de réfugié au sens de la Convention—le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; […] . a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; […] . 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality […] would subject them personally 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité […] exposée : (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (ii) elle y est exposée en tout lieu de ce pays", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-5", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 5–6", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (iii) la menace ou le risque ne résulte pas de sanctions légitimes—sauf celles infligées au mépris des normes internationales—et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.\n\nThe claims of Mr. Raza and his family for refugee protection were rejected by the RPD. The RPD did not doubt Mr. Raza’s account of the attacks he suffered. However, the RPD concluded that conditions in Pakistan had changed since his departure, and that adequate state protection was available as of the date of his application for refugee protection. Leave to seek judicial review of that decision was dismissed by the Federal Court on May 5, 2005.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-6", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 7–9", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Once the leave application was dismissed, there was no procedure available to Mr. Raza and his family to challenge the decision of the RPD to reject their claim for refugee protection on the basis of a finding of adequate state protection. There is no statutory right of appeal. Subsection 55(1) of the Refugee Protection Division Rules (SOR/2002-228) provides for a refugee protection claim to be reopened after it has been decided, but the Federal Court has held that this applies only if the application to reopen is based on an allegation that there was a failure to observe a principle of natural justice (see, for example, Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, Lakhani v. Canada (Minister of Citizenship and Immigration), 2006 FC 612).\n\nAfter the RPD rejected the claim of Mr. Raza and his family for refugee protection, they became the subjects of a removal order. Prior to their removal date, they made a PRRA application under subsection 112(1) of the IRPA, as they were entitled to do. The removal order was stayed pending the determination of the PRRA application (section 232 of the Immigration Regulations, SOR/2002-227).\n\nSubsection 112(1) reads in relevant part as follows: 112. (1) A person in Canada […] may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force […] 112. (1) La personne se trouvant au Canada […] peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet […]", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-7", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 10–11", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The purpose of section 112 of the IRPA is not disputed. It is explained as follows in the Regulatory Impact Analysis Statement, Canada Gazette, Part II, Vol. 136, Extra (June 14, 2002), at page 274: The policy basis for assessing risk prior to removal is found in Canada’s domestic and international commitments to the principle of non-refoulement. This principle holds that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. Such commitments require that risk be reviewed prior to removal. La justification, au niveau des politiques, de l’examen des risques avant renvoi se trouve dans les engagements nationaux et internationaux du Canada en faveur du principe de nonrefoulement. En vertu de ce principe, les demandeurs ne peuvent être renvoyés du Canada dans un pays où ils risqueraient d’être persécutés, torturés, tués ou soumis à des traitements ou peines cruels ou inusités. Ces engagements exigent que les risques soient examinés avant le renvoi.\n\nAssuming there are no issues of criminality or national security, an application under subsection 112(1) is allowed if, at the time of the application, the applicant meets the definition of “Convention refugee” in section 96 of the IRPA or the definition of “person in need of protection” in section 97 of the IRPA (paragraph 113(c) of the IRPA). The result of a successful PRRA application is to confer refugee protection on the applicant (subsection 114(1) of the IRPA).", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-8", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 12", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "A PRRA application by a failed refugee claimant is not an appeal or reconsideration of the decision of the RPD to reject a claim for refugee protection. Nevertheless, it may require consideration of some or all of the same factual and legal issues as a claim for refugee protection. In such cases there is an obvious risk of wasteful and potentially abusive relitigation. The IRPA mitigates that risk by limiting the evidence that may be presented to the PRRA officer. The limitation is found in paragraph 113(a) of the IRPA, which reads as follows: 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [… ] . a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet; […] .", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-9", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 13", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-10", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 13–16", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).\n\nThe first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a).\n\nI do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.\n\nOne of the arguments considered by Justice Mosley in this case is whether a document that came into existence after the RPD hearing is, for that reason alone, “new evidence”. He concluded that the newness of documentary evidence cannot be tested solely by the date on which the document was created. I agree. What is important is the event or circumstance sought to be proved by the documentary evidence.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-11", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 17–19", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Counsel for Mr. Raza and his family argued that the evidence sought to be presented in support of a PRRA application cannot be rejected solely on the basis that it “addresses the same risk issue” considered by the RPD. I agree. However, a PRRA officer may properly reject such evidence if it cannot prove that the relevant facts as of the date of the PRRA application are materially different from the facts as found by the RPD.\n\nIn this case, Mr. Raza and his family submitted a number of documents in support of their PRRA application. All of the documents were created after the rejection of their claim for refugee protection. The PRRA officer concluded that the information in the documents was essentially a repetition of the same information that was before the RPD. In my view, that conclusion was reasonable. The documents are not capable of establishing that state protection in Pakistan, which had been found by the RPD to be adequate, was no longer adequate as of the date of the PRRA application. Therefore, the proposed new evidence fails at the fourth question listed above.\n\nJustice Mosley found that the PRRA officer’s assessment of the documents was reasonable and was not based on an error of law. I agree. For that reason, I would dismiss this appeal.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-12", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 20–21", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Mosley certified the following questions: 1. Is “new evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that post-dates and is “substantially different” from the evidence that was before the Refugee Protection Division (RPD)? 2. Does the standard for the reception of “new evidence” under s. 113(a) of the IRPA require the PRRA officer to accept any evidence created after the RPD determination, even where that evidence was reasonably available to the applicant or he/she could reasonably have been expected to present it at the hearing.\n\nThese questions do not lend themselves to simple yes or no answers. I would answer them by referring to the questions listed in paragraph 13 of these reasons. “K. Sharlow” J.A. “I agree A.M. Linden J.A.” “I agree C. Michael Ryer J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-99694-1", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 1–4", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from the judgment of Gleason J. (the judge) of the Federal Court dismissing Mr. Najafi’s application for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board (the Division) that found him inadmissible pursuant to paragraphs 34(1)(b) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In its decision, the Division found that there were reasonable grounds to believe that Mr. Najafi was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and that the KDPI had engaged in or instigated the subversion by force of the Iranian government.\n\nThe judge certified the following question under subsection 74(d) of the IRPA: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nIn this appeal, Mr. Najafi also argues, as he did before the Division and the judge, that paragraph 34(1)(f) of the IRPA has to be construed and read down to avoid a violation of his freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter)).\n\nFor the reasons that follow, I propose that this appeal be dismissed.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-2", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 5–7", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Najafi is a citizen of Iran of Kurdish ethnicity. He arrived in Canada in 1999 and made a refugee claim that was accepted. He thus has refugee status. However, he does not have permanent resident status in Canada. Indeed, on March 5, 2010, a report under subsection 44(1) of the IRPA was issued regarding Mr. Najafi. On March 2, 2011, this report was referred to the Division in order to have Mr. Najafi declared inadmissible due to his involvement with the KDPI.\n\nThe Minister of Public Safety and Emergency Preparedness (the Minister) has never alleged that Mr. Najafi was personally involved in any act of violence, including an act to subvert the government by force. The issues before the Division were whether Mr. Najafi had been a member of the KDPI and whether such organization falls within the scope of paragraphs 34(1)(f) and (b) of the IRPA.\n\nDuring the inadmissibility proceedings, Mr. Najafi, in addition to his testimony, provided evidence from a senior member of the KDPI in Canada, from a journalist well versed in the activities of the KDPI, and from two international law experts on the legality of the use of force in international law in the context of an oppressed people seeking self-determination.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-3", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 8–10", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, the Division concluded that there were reasonable grounds to believe that Mr. Najafi was a de facto member of the KDPI within the broad meaning of the term “member” in paragraph 34(1)(f) of the IRPA. Although this conclusion is not being challenged on appeal, I note that the Division relied on Mr. Najafi’s association with the KDPI both in Iran and subsequently in Canada. Mr. Najafi relies on this conclusion to argue that subsection 2(d) of the Charter must be considered in construing this provision. Had the Division based its findings solely on his participation in Iran, the Charter would not have applied.\n\nWith respect to the KDPI, the Division stated that there is evidence (i) that the KDPI is an international organization with many chapters in various countries including Canada, (ii) that membership in the KDPI in Canada would automatically make a person a member of the KDPI in Iran too, and (iii) that applicants for KDPI party membership in Canada must be approved by the KDPI in Kurdistan (paragraph 24 of the decision).\n\nThe Division rejected the argument that the KDPI had two rival factions or one separate political organization distinct from the military wing. The Division found that in fact the KDPI operated under a unified common structure comprised of sections that are complementary, but functionally distinct, and that the activities of its military wing may be imputed to the organization as a whole and to each member of the organization for the purpose of an inquiry under paragraph 34(1)(f) (paragraph 15 of the decision).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-4", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 11–13", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, the Division reviewed the concept of “subversion by force of any government”. It noted that the word “subversion” is not defined in the IRPA, reviewed the jurisprudence of this Court and of the Federal Court, and considered definitions from dictionaries such as Black’s Law Dictionary, 6th edition (paragraphs 27 to 31 of the decision).\n\nThe Division then expressed the view that “subversion by force of a government” may be distinguished by its specific objective from the broader concept of use of force against the state. It specifically involves using force with the goal of overthrowing the government, either in some part of its territory or in the entire country. The Division was also satisfied that the words “any government” include even a despotic regime, and that the government’s actions, however oppressive, are not relevant to the analysis (paragraph 32 of the decision).\n\nIn view of the above, the Division concluded at paragraph 32 of its decision that: While there may be other possible interpretations, I find that the jurisprudence indicates that using force with the goal of overthrowing any government amounts to subversion by force. In making this decision, the Division rejected Mr. Najafi’s argument that “subversion by force of any government” must necessarily refer to the unlawful use of force and that legitimate uses of force in international conflicts such as those set out in the affidavits of his legal experts should not fall within the definition. It found that analysis of the legitimacy or legality of the armed struggle is not called for in the context of an inadmissibility hearing – although it may be very relevant to an application for a ministerial exemption pursuant to subsection 34(2) (now 42.1(1) of the IRPA) (paragraph 33 of the decision).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-5", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 14–15", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thirdly, the Division proceeded to determine whether the KDPI’s objective had been to overthrow the government of Iran. It found that the KDPI advocated and participated in the overthrow of the Shah of Iran and that, later on, the KDPI’s long-term objective of establishing a democratic socialist society within a federal Iran included the replacement of what the KDPI described as the “theocratic dictatorship” of the “reactionary and bloodthirsty regime of [the] Islamic Republic” with a new democratic federal system: the Federal Republic of Iran (paragraphs 34 to 36 of the decision).\n\nThe Division then reviewed the KDPI’s methods. After acknowledging that there was considerable evidence that the KDPI’s use of force had largely been in self-defence, it found that the KDPI nonetheless deliberately used armed force to try to overthrow the Iranian government and that this was part of its strategic repertoire. This was certainly true in the 1967-1968 period, during which it was engaged in an unsuccessful armed uprising against the Shah of Iran. In 1973, the KDPI “committed itself formally to armed struggle”. The Division then noted that the KDPI’s armed conflict with the Iranian government was at its height in 1982 and 1983, during which it was driven out of population centres and forced into guerrilla warfare in the mountains, although it temporarily recaptured the town of Bukan in September 1983 (paragraphs 37 to 41 of the decision).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-6", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 16–18", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Division further noted that from the mid 1980s to early 1990s KDPI forces were in control of the countryside with support from the Kurdish population while the Iranian forces held the cities. It found that the KDPI did attack Iranian forces within areas under KDPI control prior to the KDPI mid-1990s withdrawal of its armed forces from the Iranian territory (paragraphs 41 to 42 of the decision).\n\nThe Division concluded that overall the evidence provided by both parties was sufficient to meet the low threshold of establishing reasonable grounds to believe that the KDPI has engaged in or instigated the subversion by force of a government (paragraph 43 of the decision).\n\nThe Division rejected Mr. Najafi’s argument that the KDPI had expressly given up any form of violence, stating that the KDPI still maintains a military wing that trains in war tactics. It also held that after the alleged renunciation of violence, there was some evidence of continued KDPI guerrilla attacks within Iran. Thus, even if one were to accept that there was an exception where “a violent organization has transformed itself into a legitimate political party and has expressly given up any form of violence”, this exception would not apply to the KDPI in this case (paragraphs 11 to 13 of the decision).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-7", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 19–20", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Division rejected Mr. Najafi’s argument that paragraph 34(1)(f) should not be read to include a lawful organization in Canada that has not engaged in unlawful activities outside of Canada because this would constitute a violation of his constitutional right to freedom of association (section 2(d) of the Charter). The Division found that Mr. Najafi can continue to live in Canada and participate freely in the KDPI if he wishes, and he can apply for a ministerial exemption pursuant to subsection 34(2) of the IRPA. Thus, it held that it cannot be assumed that holding Mr. Najafi inadmissible on the basis of paragraph 34(1)(f) of the IRPA would have “any significant negative legal consequences for him, let alone any sufficient to constitute a breach of his Charter rights” (paragraphs 16 to 18 of the decision).\n\nThe judge summarizes her findings at paragraph 7 of her reasons, reported under the neutral citation 2013 FC 876 (the Reasons) as follows: For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined that the applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonably held that the KDPI had engaged in “subversion by force” of the Iranian governments. Insofar as concerns the applicant’s invocation of international law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from the settled interpretation of section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed. (i) Paragraph 34(1)(b) and International law", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-8", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 21–23", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Part III of her reasons, starting at paragraph 52, the judge deals with Mr. Najafi’s argument that “subversion by force of any government” (paragraph 34(1)(b) of the IRPA) cannot be construed as including the KDPI’s use of force against the Iranian government because it was legitimate to use such force under international law.\n\nAfter summarizing Mr. Najafi’s expert evidence (paragraphs 54 and 55 of the Reasons), the judge ruled that she had to determine three issues, namely: i) What standard of review is applicable? ii) Did the Division commit a reviewable error in failing to consider international law; and iii) If so, does international law mandate the interpretation Mr. Najafi advances?\n\nIn respect of the first issue, the judge acknowledged that the most recent decisions of the Supreme Court of Canada would normally mandate that deference be afforded to the Division’s interpretation of its home statute or one closely related to its function. She then considered that a long line of authority shows that determining whether the actions of an individual or an organization fall within the scope of paragraph 34(1)(b) is a question of mixed fact and law and that the two requirements (the factual and legal interpretation of the words “subversion by force of any government”) are not to be uncoupled (paragraph 59 of the Reasons). Furthermore, she notes the similarity between the question before her and the one before this Court in B010 v. Canada (Citizenship and Immigration), 2013 FCA 87 [B010] (paragraphs 58 to 60 of the Reasons).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-9", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 24–26", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge concluded from this analysis that the Division’s finding regarding the applicability of paragraph 34(1)(b) is to be reviewed on the reasonableness standard. However, the judge expressly held that the selection of the standard of review is not determinative. She found that the Division’s interpretation of paragraph 34(1)(b) is not just reasonable, it is also correct (paragraph 61 of the Reasons).\n\nTurning to the second issue under this heading – did the Division err in not considering international law – the judge found that the context shows that “Parliament intended that the balancing of the soundness of motive for the use of force be a matter for consideration by the Minister under subsection 34(2) of the IRPA and not for the Division under subsection 34(1)” (paragraph 68 of the Reasons).\n\nThe judge based this conclusion on her analysis of the wording of the paragraph in the context of the section as a whole, including the legislative history (paragraphs 64 to 67). She also found support for her interpretation of paragraph 34(1)(b) in the case law and in the fact that the presumption that the legislator intended to comply with international law cannot be used to override clear provisions of a statute. Therefore, in her view, the Division did not err in declining to consult international law to construe paragraph 34(1)(b) (paragraphs 69-73).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-10", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 27–29", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge also went further and found that even if she were wrong concerning how international law was to be handled, Mr. Najafi did not establish that international law recognizes the use of force in furtherance of self-determination in the manner suggested (paragraphs 74–79 of the Reasons). Among other things, the judge ruled that Mr. Najafi does not fall within the definition of “combatant” as he never performed a “continuous combat function”. She also found that in light of section 25 (the ministerial exemption based on humanitarian and compassionate considerations) and subsection 34(2) of the IRPA, Canada could not be found in contravention of its international obligations simply because Mr. Najafi was found inadmissible under subsection 34(1) of the IRPA (paragraphs 74 to 79 of the Reasons). (ii) Section 2(d) of the Charter\n\nIn paragraphs 23 to 51 of her reasons, the judge analysed Mr. Najafi’s submission that the Division’s interpretation violates right to freedom of association under section 2(d) of the Charter and, thus, offends the presumption that Parliament intended the IRPA to operate in accordance with the Charter.\n\nThe Division construed paragraph 34(1)(f) without reference to this presumption of compliance with the Charter because, in its view, the matter did not engage a constitutional right.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-11", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 30–31", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "On this issue, the judge applied the standard of correctness, and rejected the Minister’s argument that the reasonableness standard set out by the Supreme Court of Canada in Doré v. Le Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 applied [Doré]. In her view, the deferential standard of reasonableness does not apply when the Division is called upon to make substantive findings on Charter rights, which is what happened here. The judge further noted that the role of the Division is entirely different from that of the Minister under subsection 34(2). In her view, it is only in the latter case – when the Minister is exercising his statutory discretion – that the decision will be reviewable under the reasonableness standard for compliance with the Charter in accordance with Doré (paragraphs 32 and 36 of her Reasons).\n\nIn respect of the merits of Mr. Najafi’s argument, the judge relied on Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, and Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, to reject the Minister’s argument that section 2(d) was not engaged at all because this matter only involved the removal of legislated benefits (see paragraph 11 of the Reasons, in which the judge describes the impact of the Division’s decision on Mr. Najafi).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-12", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 32", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge agreed with the Minister that the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh] offers much guidance in respect of Mr. Najafi’s submissions in this case. She first noted that in Suresh, the Supreme Court of Canada held that freedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence. In her view, the Supreme Court of Canada also gave short shrift to Mr. Suresh’s argument that all his activities in Canada were perfectly legal. Finally, she relied on the following passage of Suresh, which dealt with section 19 (the predecessor to section 34): We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-13", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 33–34", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge then reviewed the most relevant Federal Court decisions since Suresh. Having acknowledged Mr. Najafi’s argument that these cases, as well as Suresh, are distinguishable on their facts, the judge nevertheless found that all of these cases support the principle that section 2(d) of the Charter does not protect membership in organizations that use violence. All agree that the KDPI engaged in violence many years as part of its campaign to overthrow two different regimes in Iran.\n\nHaving satisfied herself that there would be no violation of Mr. Najafi’s constitutional rights, the judge notes that it was unnecessary to go on to discuss the rationale offered by the Division.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-14", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 35", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the relevant time, the sections of the IRPA of interest read as follows: 3. (1) The objectives of this Act with respect to immigration are 3. (1) En matière d’immigration, la présente loi a pour objet : (h) to protect public health and safety and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (3) This Act is to be construed and applied in a manner that (3) 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. 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-15", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 35", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. [Repealed, 2013, c. 16, s. 13] (as mentioned earlier, section 34(2) was repealed and a new version enacted in subsection 42.1(1) of the IRPA in June 2013).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-16", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 35–39", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national. [Abrogé, 2013, ch. 16, art. 13] (Tel que déjà mentionné, le paragraphe 34(2) a été abrogé et une nouvelle version adoptée au paragraphe 42.1(1) de la LIPR en juin 2013).\n\nThe judge certified the question set out in paragraph 2 above. Mr. Najafi states in the conclusion of his memorandum (at paragraph 116) that this question should be answered in the affirmative. However, in his memorandum (see paragraphs 2 to 5, 54 and 92 to 114) and, at the hearing before us, he never addressed the question as formulated by the judge.\n\nMr. Najafi reformulates the substantive questions to be reviewed on appeal as follows: Did the Court err in its assessment of the Division’s failure to apply international law principles to its interpretation of “subversion by force” in section 34(1)(b) of the IRPA? Did the Court err in its assessment of the Appellant’s arguments on subversion by force of any government?\n\nAlso, Mr. Najafi raises the following question in his memorandum: Did the Applications judge err in law by finding that the Tribunal decision did not breach the Appellant’s section 2(d) right to freedom of association under the Charter? However, as I explain in paragraphs 99 and 100 below, my focus will be on the interpretation of paragraph 34(1)(f) of the IRPA.\n\nMr. Najafi does not challenge any of the Division’s factual findings. Indeed, Mr. Najafi relies on the Division’s finding that he was a member of the KDPI to support his submission on the issues referred to above, particularly his argument based on section 2(d) of the Charter.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-17", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 40–42", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is trite law that the threshold for certifying a question is: is there “a serious question of general importance which would be dispositive of an appeal”, (Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 at paragraph 11).\n\nIt is worth reproducing again the question certified by the judge: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nAt paragraph 90 of the Reasons, the judge states very clearly that the question she was willing to certify concerns the interplay of the right alleged to exist under international law and the interpretation to be afforded to paragraph 34(1)(b) of the IRPA. However, if one takes the certified question literally, it is evident that international law does not require any exclusion, for it normally has no direct application in the domestic law of Canada. Moreover, this would not constitute a serious question, given that the role of international law in the interpretation of statutes i.e., the interplay between the two) has been discussed in several decisions of the Supreme Court of Canada and of this Court, including decisions dealing specifically with the IRPA. The established principles are of general application. Thus, they do apply to the interpretation of paragraph 34(1)(b) of the IRPA.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-18", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 43–47", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "These principles are summarized in Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), chapter 20 (“Construction of Statutes, 2008”). As noted by the author at page 537, international law is generally used as an aid in interpreting domestic legislation. Both parties agree that the presumption that the legislator intended to comply with Canada’s international law obligations is rebuttable.\n\nThis may well explain why, as mentioned earlier, Mr. Najafi reformulated the questions to be answered in respect of paragraph 34(1)(b) (see paragraph 37 above).\n\nThat said, the judge’s intent becomes clear when one considers her comments in context - both the Division and the judge concluded that the presumption referred to above was rebutted without the need to consider and assess the content of international law because of the clear and unambiguous wording of paragraph 34(1)(b).\n\nFrom this, I understand that the question to be answered by this Court is: Can paragraph 34(1)(b) of the IRPA be interpreted to exclude from its ambit the alleged right to use force in an attempt to subvert a certain type of government in furtherance of an oppressed people’s claimed right to self-determination assuming that such right is recognized under Protocol I of the Geneva Conventions of 1949?\n\nIn this case, the only relevant international human rights instrument to which Canada is a signatory, within the meaning of paragraph 3(3)(f) of the IRPA, is the Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ratified by Canada in 1990 (“Protocol I”).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-19", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 48–50", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is well known that the Geneva Conventions to which Protocol I relates and Protocol I itself are intended to protect the civilian population during an armed conflict as defined therein as well as the rights and obligations of “combatants” within the meaning of Protocol I and the Geneva Conventions. Thus, these instruments generally deal with what is often referred to in international law as jus in bello (conduct of war) as opposed to jus ad bellum (the right to wage war).\n\nThe international law issue that is relevant in this appeal is not whether international law recognizes the right of oppressed peoples to self-determination. That concept is not disputed. It was considered in Reference re Secession of Quebec, [1998] 2 S.C.R. 217.\n\nRather, the focus is on whether force can be used to achieve external self-determination against colonial domination, or alien occupation and racist regimes. As acknowledged during the hearing, Mr. Najafi’s experts do not rely on an alleged customary rule of international law in that respect. In fact, in his affidavit, René Provost, at paragraph 34, clearly states that: 34. The manner by which a people can arrive at and express a choice under its right to external self-determination is not clearly stipulated by international law.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-20", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 51–53", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Najafi’s position appears to be that in this very narrow set of circumstances, the legality of an oppressed people’s use of force to exercise the right to self-determination is positively affirmed in binding treaties. Mr. Najafi’s experts point only to Protocol I in support of this assertion (see for example René Provost’s affidavit at paragraph 41). The argument is that the use of force (i.e., violence) by the KPDI is therefore legitimate, and as such, cannot fall within the ambit of “subversion by force of any government” within the meaning of paragraph 34(1)(b).\n\nI do not understand Mr. Najafi to say that Protocol I or the Geneva Conventions contain any provision dealing specifically with the right of combatants to be granted entry to the signatories’ territories. Neither Protocol I nor the Geneva Conventions requires the signatories to grant any type of immigration status to these combatants or anybody else in their countries. As a matter of fact, there is no such provision.\n\nHence, nobody actually argues that by setting out an inadmissibility provision such as paragraph 34(1)(b) in the IRPA, Canada would be in violation of Protocol I or the Geneva Conventions.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-21", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 54–56", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is in contrast to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which expressly deals with the grant of a specific status – refugee status. As mentioned, Mr. Najafi still has refugee status, despite the fact that he was found to be inadmissible. It is worth reiterating that inadmissibility should not be confused with removal; these are two distinct concepts. It is not disputed that Mr. Najafi cannot be removed without additional substantive steps being taken in accordance with the provisions in the IRPA meant to ensure protection against “refoulement” as set out in the Refugee Convention.\n\nIn this appeal, this Court’s role is to assess whether the judge chose the appropriate standard of review for each of the questions before her and whether she applied them properly (Agraira v. Canada (Public Safety and Emergency Preparedness, 2013 SCC 36 at paragraphs 45 to 47 [Agraira]).\n\nTurning now to the standard chosen by the judge, I agree with her analysis that there is no basis, in the present context, for ousting the presumption that deference should be afforded to the Division’s interpretation of its home statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paragraph 34, Agraira at paragraph 50, McLean v. British Columbia (Securities Commission), 2013 SCC 67 at paragraphs 20 to 21, 33). This is especially so when one considers that the issue here is not whether the Division improperly interpreted an international instrument or a rule of customary international law. Rather, it is whether it erred in concluding that the legitimacy of the use of force is not an issue to be considered because of the clear and unambiguous language of paragraph 34(1)(b) of the IRPA.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-22", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 57–60", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "This means that to determine if the judge applied the standard appropriately, I must assess whether on the appropriate contextual and purposive analysis of paragraph 34(1)(b), the interpretation adopted by the Division is within the range of possible, acceptable outcomes.\n\nBefore embarking on my analysis of the Division’s interpretation of paragraph 34(1)(b), I will deal briefly with two arguments put forth by Mr. Najafi.\n\nFirst, at the hearing, Mr. Najafi submitted that, as a matter of principle, neither the Division nor the judge could conclude that the presumption of compliance was ousted before examining his expert evidence on the legitimacy of the KDPI’s use of force. Second, he argued that again, as a matter of principle, to oust the presumption referred to above, the legislator must expressly state that its international obligations should be disregarded (memorandum of fact and law, paragraph 93).\n\nWith respect to the first question, it is clear that like any decision-maker tasked with statutory interpretation, the Division must apply the Driedger modern approach to statutory interpretation (Construction of Statutes, 2nd Edition, 1983 at page 87): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-23", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 61–62", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "International law may be an important part of the legal context, but it is only one of many factors and presumptions that are considered in applying this modern approach. In my view, relevant international law, like other relevant elements of the legal context, should ideally be taken into account before concluding whether or not a text is clear or ambiguous. I note that this is also the view expressed in Construction of Statutes, 2008 at page 547 but as mentioned by the author, many courts still consider ambiguity a prerequisite.\n\nThat said, the modern approach is contextual. There is therefore no single way to apply it. Indeed, there may be cases where the other factors of the relevant context are so strongly in favour of a particular interpretation that international law could only have little to no impact. In such cases, a decision-maker may not be required to go through the exercise of assessing the evidence before it, particularly when what is argued is not really a direct violation of an international instrument to which Canada is a signatory, or does not involve a particularly well established rule of customary international law.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-24", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 63–64", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, recently, the Supreme Court of Canada in Németh v. Canda (Justice), 2010 SCC 56, [2010] 3 S.C. R. 281 [Németh], made the point that section 115 of the IRPA, read in the context of the statute as a whole, was clear, before it reviewed the extent of Canada’s obligations under the Refugee Convention. Thereafter, having reviewed the Refugee Convention and concluded that it provided for more than what was reflected by the meaning it earlier ascribed to section 115, the Court simply said that the clear meaning of the section must be given effect as the presumption of compliance with international law is rebuttable (paragraphs 31, 34 and 35).\n\nTurning to Mr. Najafi’s second argument, I cannot agree that the legislator must expressly state in the provision at issue that its international obligations should be overcome. If it were so, the Supreme Court of Canada could not have reached the conclusion that it did in Németh that section 115 of the IRPA does not address removal by extradition when it was acknowledged that the ordinary meaning of the words used in the section, “removed from Canada”, could include extradition as a form of removal. Thus, the matter is not one of principle. Rather, it is simply a question of properly applying the contextual approach, taking into consideration the words of paragraph 34(1)(b) (in French and English) and reading them in their entire context harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. In assessing the reasonableness of the Division’s interpretation, I will now proceed in this way.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-25", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 65–67", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted by the Division, the word “subversion” is not defined in the Act, and there is no universally adopted definition of the term. The Black’s Law Dictionary’s definition to which the Division refers at paragraph 27 (particularly, the words “the act or process of overthrowing … the government”) is very much in line with the ordinary meaning of the French text («actes visant au renversement d’un gouvernement »). Although in certain contexts, the word “subversion” may well be understood to refer to illicit acts or acts done for an improper purpose, the words used in the French text do not convey any such connotation. I am satisfied that the shared meaning of the two texts does not ordinarily include any reference to the legality or legitimacy of such acts.\n\nI note that the word “subversion” is used only in the English version of paragraph 34(1)(b), while it is used in both the English and French versions of paragraph 34(1)(a). This may or may not signal a different meaning, but it is not my purpose to properly construe paragraph 34(1)(a) in this appeal. I will only note that in Qu v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 71, rev’d in 2001 FCA 399, the application judge was dealing with a predecessor of paragraph 34(1)(a), and this Court never had to deal with the meaning of “subversion” on appeal.\n\nIn the provision at issue here, the word “subversion” must be read in the context of the expression “subversion by force of any government” (in French: “actes visant au renversement d’un gouvernement par la force”), whereas in paragraph 34(1)(a), it is used in reference to “an act of subversion against a democratic government”.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-26", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 68–71", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "While Mr. Najafi has attempted to frame the debate around the interpretation in terms of the words “subversion by force” in paragraph 34(1)(b), and the legitimacy of the use of the force in certain contexts mentioned above under international law, it is apparent from the expert evidence he relies on that a key question is the legitimacy of the government against which such use of force is directed.\n\nThe notion of an oppressed people’s right of self-determination to use force on which he relies, is directly linked to the “illegitimacy” of the government being opposed because of colonial domination or alien occupation and racism.\n\nThis is why the judge put as much emphasis as she did on the immediate context of paragraph 34(1)(b). The interpretative question raised by these facts is whether the word “government” is limited to “democratically elected government” or some other formula designating a government whose legitimacy is not in issue, or whether it applies to any government, even it is oppressive and racist. When one considers the words of paragraph 34(1)(b), (“any government”), they are clear and unambiguous. The words “subversion by force of any government” do not on their face, imply a qualification of any kind with respect to the government in question.\n\nAlthough the IRPA has many objectives listed in section 3(1), Parliament indicated an intent to prioritize security (paragraph 3(1)h)) when it enacted paragraph 34(1)(b). Indeed, this paragraph provides specifically that a person is inadmissible on security grounds. Thus, the focus of the provision under review is on the right of the government to control its frontier and to deny entry to persons who may be a threat to its security.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-27", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 72–73", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Turning now to the legislative evolution of this specific ground of inadmissibility, the first such provision was included in the Immigration Act, S.C. 1919, c. 25, (paragraph 3(6)(n)), referred to “persons who believed in or advocated the overthrow by force or violence of the Government of Canada or of constituted law and authority, or who disbelieved in or are opposed to organized government”, (in French: «les personnes qui croient au renversement ou qui préconisent le renversement, par la force ou la violence du gouvernement du Canada ou de la loi ou de l’autorité constituée, ou qui ne croient pas à un gouvernement organisé et s’y opposent…»).\n\nIt was in 1952 that the word “subversion” was first used in the Immigration Act, S.C. 1952, c. 42. Paragraph 5(m) included “persons who have engaged in or advocated or … are likely to engage in or advocate subversion by force or other means of democratic government…” (the French text however, still referred to « le renversement, par la force ou autrement, du régime, des institutions ou des méthodes démocratiques… ». A new paragraph, 5(n), was also included to prohibit the entry of “persons … likely to engage in espionage, sabotage or any subversive activity directed against Canada or detrimental to the security of Canada” (in French: « les personnes qui … sont susceptibles de se livrer à l’espionnage, au sabotage ou à tout autre activité subversive dirigée contre le Canada ou préjudiciable à sa sécurité »). These provisions were carried forward in the 1970 Revised Statutes of Canada.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-28", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 74–77", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The 1976-77 amendments to the Immigration Act (S.C. 1976-77, c. 52) moved the relevant prohibited class provisions to section 19, dealing with inadmissible classes. Paragraph 19(1)(f) still refers to “subversion by force of any government”, while the French text refers to « renversement d’un gouvernement par la force ». The words “espionage, sabotage or any subversive activity” were changed and the class was moved to paragraph 19(e), which applied to acts of espionage or subversion against democratic governments (in French: « des actes d’espionage ou de subversion contre des institutions démocratiques »). In 1992 (S.C. 1992, c. 49) the provisions were all moved to paragraph 19(1)(e), with no changes to the words referred to above.\n\nWith the adoption of the new Immigration Refugee Protection Act (IRPA, S.C. 2001 c. 27), the inadmissibility classes based on security grounds were moved to section 34, which is the version of the provisions on which the Division relied (see paragraph 34 above).\n\nI note that in the various incarnations of the prohibited or inadmissible classes, there were many other changes, but they are not relevant to the present issue.\n\nIt is also worth mentioning that as of 1927 (1927 Revised Statutes of Canada), the various iterations of the relevant provisions included the possibility of obtaining a ministerial exemption. The provision regarding the ministerial exemption only expressly refers to the need to ensure that such exemption is not contrary to public interest as of 1952 (S.C. 1952, c. 42, paragraph 9(c)). “[C]ontrary to public interest” became “detrimental to the national interest” in 1992 (S.C. 1992, c. 49, paragraph 19(1)(f) in fine).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-29", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 78–81", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is little material of interest in the legislative history of paragraph 34(1)(b).This source is to be given less weight in any event. That said, the judge could refer to the material she describes at paragraph 67 of the Reasons, as it simply confirms what one gathers from the legislative evolution – that Parliament intended the expression “subversion by force of any government” in paragraph 34(1)(b) to have a broad application.\n\nThe comments made and the ultimate rejection of a motion to replace the words “of any government” with “democratically elected government” in paragraph 34(1)(b) before the Standing Committee on Citizenship and Immigration and the comments made in the House of Commons during the debate at the third reading, confirm that Parliament was very much alive to arguments like those advanced by Mr. Najafi when it adopted the provision.\n\nObviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application. (As discussed above, subsection 34(2) is now subsection 42.1(1). Per subsection 42.1(2), it can now also be granted on the Minister’s own initiative).\n\nThis mechanism can be used to protect innocent members of an organization but also members of organizations whose admission to Canada would not be detrimental or contrary to national interest because of the organization’s activities in Canada and the legitimacy of the use of force to subvert a government abroad.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-30", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 82–85", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is obvious that in the latter case in particular, the resolution of international law issues may be complex. This supports the argument that the Minister is better equipped to deal with such issues in the context of an application for ministerial exemption. An example of such reasoning is provided by the Geneva Conventions Act, R.S.C., 1985, c. G-3, section 9, which allows the Minister of Foreign Affairs to issue a certificate stating that a state of war or of international or non-international armed conflict existed between states or within a state.\n\nAt this stage of my analysis, I find that the language of paragraph 34(1)(b) is clear.\n\nAs in Németh, I will now consider the international law principle put forth by Mr. Najafi in support of his view that paragraph 34(1)(b) should be construed as follows: Subversion by force means using force to overthrow a government but does not include force used by lawful combatants protected by Protocol I.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 [Febles], at paragraph 12, the Supreme Court of Canada reiterated that international conventions must be construed in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T. S. 1980 No. 37, which are similar to our own general principles of statutory interpretation.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-31", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 86–87", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The evidence of Mr. Najafi’s experts in this respect appears to be somewhat incomplete. For example, they do not explain how they construed the following paragraphs of the Preamble to Protocol I and what effect they gave to its Article 4. Preamble: Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations, Reaffirming further that the provisions of the Geneva Conventions of 12 August1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict Article 4: The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.\n\nI also note that the view of these experts is at odds with the view expressed by Heather Wilson in her book entitled: International Law and the Use of Force by National Liberation Movements (Book of Authorities, Volume 4, Tab 52). In her conclusions at page 135, she states that to contend unequivocally that Protocol I reflects a change in international law giving international liberation movements the authority to use force legitimately would be an overstatement.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-32", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 88–91", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, as the Division did not comment on this evidence, I am prepared to assume, without deciding, that the legal effect of Protocol I is as stated in the affidavits of Mr. Najafi’s experts. This will ensure that I complete my review of the overall legal context to Mr. Najafi’s greatest advantage.\n\nEven if I adopt this approach, I cannot conclude from the overall legal context that paragraph 34(1)(b) should be construed as encompassing only the use of force that is not legitimate or lawful pursuant to international law.\n\nLike the Division, I find that legality or legitimacy may well be an issue that the Minister can consider under subsection 34(2) of the IRPA, but it is not one that is relevant to the application of paragraph 34(1)(b). Thus, the Division’s interpretation is clearly reasonable. I would answer the certified question, as formulated by the judge or reformulated at paragraph 46, in the negative.\n\nIn reaching this conclusion, I considered Mr. Najafi’s argument that the Division’s interpretation might capture a member of the Canadian Armed Forces within the ambit of paragraph 34(1)(b) of the IRPA. This hypothetical was meant to illustrate the “absurdity” of the Division’s interpretation. In my experience, one can usually concoct a dubious example designed to show that a particular provision is overbroad and cannot have been intended. However, courts must consider that the Act will be administered in a reasonable way. It strains credulity to suppose that an inadmissibility report would be issued in respect of a member of the Canadian Armed Forces based on his or her actions as a Canadian soldier.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-33", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 92–96", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Prior to the hearing, the parties debated as to whether or not Mr. Najafi was required to serve a notice of constitutional question pursuant to section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, in order to raise his argument based on section 2(d) of the Charter.\n\nDespite the fact that he believes that it was not necessary to send such a notice, Mr. Najafi did so in an abundance of caution. However, both parties asked the Court to clarify the issue.\n\nIn a letter to the Court dated March 31, 2014, Mr. Najafi’s counsel made it absolutely clear that his position had been consistent from the outset, and that what Mr. Najafi claims is that “the provision must be interpreted so as to not infringe the Appellant’s right to associate protected by subsection 2(d) of the Charter. This requires the Court to exclude from the scope of subsection 34(1) memberships in organizations that are legal in Canada and that do not support illegal activities committed outside of Canada”. Mr. Najafi’s counsel stated that he was relying on the presumption of compliance with constitutional law, which he says is sufficient to enable the Division and this Court to read down paragraph 34(1)(f) so as to exclude organizations such as the KDPI.\n\nAgain, at the hearing and at the request of the panel, Mr. Najafi made it abundantly clear that he had chosen not to argue that paragraph 34(1)(f) is invalid, inapplicable or inoperable on constitutional grounds and that therefore, section 57 of the Federal Courts Act, should not apply.\n\nI agree. In such a case, no notice of constitutional question is required.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-34", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 97–100", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, it is important to note that although reading down can be used as an interpretive technique or as a constitutional remedy, the distinction between the two is important in the context of Charter cases. When one relies on the presumption of compliance with the Charter to narrow the interpretation of a provision, the issue of whether that language, without the exclusion, might be justifiable under section 1 does not arise. However, when reading down is used as a remedy in the context of a constitutional challenge to the validity of a provision, its validity is first assessed and the need to read down words does not arise unless and until any possible defence based on section 1 has been tried and failed (Construction of Statutes, 2008 at pages 465 to 466).\n\nThe judge never had to determine the standard of review applicable to the proper interpretation of the word “organization” in paragraph 34(1)(f) as she never got to that question, having concluded that the matter did not involve a violation of any Charter right.\n\nWith the benefit of Mr. Najafi’s clarifications as to his arguments, (see paragraphs 94 and 95 above), there is no need to deal with the judge’s finding that the matter did not involve Charter violation, if in any event, paragraph 34(1)(f) of the IRPA cannot be read down so as to exclude organizations such as the KDPI, simply as a matter of interpretation, rather than as a remedy.\n\nI will thus first determine whether, using the Driedger modern approach to statutory interpretation (and paragraph 3(3)(d) of the IRPA), the Division could reasonably construe the word “organization” used in paragraph 34(1)(f) as excluding the KDPI in the absence of a constitutional challenge to the validity of this provision.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-35", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 101–105", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Division construed paragraph 34(1)(f) in accordance with a long line of jurisprudence, including this Court’s decision in Gebreab v. Canada (Public Safety and Emergency Preparedness), 2010 FCA 274, that no temporal connection is required between the membership and the acts referred to in paragraphs 34(1)(a), (b) and (c) of the IRPA. It also construed it as applicable to activities carried out by the organization outside of Canada even if its activities in Canada were legal.\n\nMr. Najafi does not challenge that this is a reasonable interpretation when applied to an organization to which section 2(d) of the Charter would not apply. However, he argues that this is not so if membership in an organization protected by the Charter is involved. He also adds that subversion by force by any organization would have to be excluded, even when it is not so excluded, where the person has himself or herself engaged in such acts under paragraph 34(1)(b).\n\nAt the hearing, Mr. Najafi’s counsel proposed that the word “organization” should simply be construed as follows: An organization other than an organization operating in Canada whose activities are lawful in Canada.\n\nIn my view, this is too wide. It would offend the holding of the Supreme Court of Canada in Suresh.\n\nIn Suresh, it was argued that the organization at issue never engaged in any unlawful activities in Canada. Still, the Supreme Court of Canada found that section 2(d) does not protect the right to associate with an organization which engages in violence or terrorism abroad while the person is a member.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-36", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 106", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Turning now to the interpretation of paragraph 34(1)(f), I find it relevant that in Suresh, the Supreme Court of Canada noted that the inadmissibility provision (in that case, section 19 of the Immigration Act, R.S.C. 1985, c. I-2, dealing with membership in an organization engaged in terrorism) must be read with the section providing for a ministerial exemption (the predecessor of subsection 34(2) of the IRPA), as it evidences the legislator’s intention to allow for a balancing of Charter values with other Canadian fundamental values, such as national interest, national security and the protection of the safety of the Canadian society (Suresh, at paragraphs 109 to 110). This is especially so since Agraira and Doré made it abundantly clear that the Minister’s decision in respect of an exemption under subsection 34(2) must involve such a balancing of Charter rights and values with the important objectives set out in that subsection.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-37", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 107–109", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not reasonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewriting the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Charter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”.\n\nGiven that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to violate section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.\n\nIn view of the foregoing, I propose to dismiss this appeal and to answer the certified question, as formulated by the judge or as reformulated in paragraph 46 above, in the negative. “Johanne Gauthier” J.A. “I agree J.D. Denis Pelletier J.A.” “I agree D.J. Near J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-108889-1", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 1–5", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division of the Immigration and Refugee Board of Canada found the appellant to be inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). The Immigration Division found that the appellant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism. The Immigration Division reasoned that:\n\nA judge of the Federal Court dismissed an application for judicial review of the decision of the Immigration Division (2014 FC 384) that the appellant was inadmissible under paragraph 34(1)(f) of the Act. The Judge certified the following question: Does Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?\n\nThis is an appeal from the decision of the Federal Court.\n\nIn my view, the issues to be resolved on this appeal are:\n\nThe questions before this Court are: did the Federal Court select the appropriate standard of review and apply it correctly? To answer these questions this Court must “step into the shoes” of the Federal Court and focus on the administrative decision at issue (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45 and 46).", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-2", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 6–10", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court did not expressly consider the standard of review. It framed the issue before it to be whether the decision of the Immigration Division was reasonable with respect to whether the appellant was a member of an organization that there are reasonable grounds to believe engaged in terrorism. The Federal Court noted that the outcome would turn on whether it was reasonable for the Immigration Division to find that membership in the TNA, a political party, was tantamount to membership in the LTTE (reasons, at paragraph 3).\n\nThe parties disagree about the standard of review to be applied to the Immigration Division’s interpretation of “member”.\n\nThe appellant argues that the definition of “member” is a legal question of general importance outside of the expertise of the Immigration Division. The word “member” therefore must be interpreted correctly. The appellant also relies upon the decision of this Court in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113, 459 N.R. 367.\n\nThe respondent submits that this Court has previously applied the reasonableness standard to the Immigration Division’s interpretation of member: Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487.\n\nIn my view, in this case nothing turns on the standard of review. On the basis of the required textual, contextual and purposive analysis conducted below, there is only a single reasonable interpretation of the word “member” (McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paragraph 38; Canada (Minister of Public Safety and Emergency Preparedness v. Huang, 2014 FCA 228, 464 N.R. 112, at paragraph 39).", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-3", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 11–15", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, the substance of the decision of the Immigration Division is to be reviewed on the standard of reasonableness.\n\nThe appellant submits that the approach of the Supreme Court to complicity in Ezokola reflects broader concerns and articulates principles of interpretation of wider application. The appellant asserts that the Supreme Court’s concern in Ezokola about excluding those who are guilty of no wrongdoing should also guide the interpretation of “membership” under paragraph 34(1)(f) of the Act. It follows, the appellant argues, that membership should not be extended to those who are not involved in terrorist activities or who are loosely linked to a terrorist organization or who are compelled to join a terrorist organization. The appellant further argues that in keeping with the parameters of what the Supreme Court found in Ezokola to be blameworthy conduct, the principled nexus must be a significant contribution to the wrongful actions of the group by a true member who joined without coercion or compulsion.\n\nI disagree that the decision of the Supreme Court in Ezokola requires modification of the legal test for membership in a terrorist organization. I reach this conclusion for the following reasons.\n\nI begin by discussing the scheme of the Act and the nature of the issue before the Supreme Court in Ezokola.\n\nArticle 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(a) is set out in the appendix to these reasons, together with all sections of the Act cited in these reasons.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-4", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 16–19", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "Article 1F(a) is incorporated into Canadian law by section 98 of the Act.\n\nAs a matter of law, criminal liability is not confined to the direct perpetrators of a crime. As the Supreme Court noted in Ezokola, a murder conviction can attach equally to one who pulls the trigger as well as to one who provides the gun (Ezokola, at paragraph 1).\n\nAt issue in Ezokola was the line between mere association and culpable complicity (Ezokola, at paragraph 4). The Court found that complicity arises by contribution; Article 1F(a) requires serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose (Ezokola, at paragraph 8).\n\nParagraph 35(1)(a) of the Act is the domestic inadmissibility provision that parallels Article 1F(a). In material part, paragraph 35(1)(a) of the Act provides: 35. (1) Human or international rights violation – A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for 35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; [Emphasis added.] a) commettre, hors du Canada, une des infractions visées aux articles 4 è 7 de la Loi sur les crimes contre l’humanité et les crimes de guerre; [Le souligné est de moi.]", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-5", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 20–23", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The present appeal implicates subsection 34(1) of the Act: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : […] [. . .] (c) engaging in terrorism; c) se livrer au terrorisme; […] [. . .] (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs (a), (b), (b.1) or (c). [Emphasis added.] f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). [Le souligné est de moi.]\n\nRead together, clear differences exist between subsections 34(1) and 35(1). Under subsection 34(1) an inadmissibility finding flows from engaging in terrorism or membership in an organization that engages in terrorism; under subsection 35(1) an inadmissibility finding flows from the commission of an offence. Because criminal liability attaches to both the direct perpetrators and their accomplices, complicity is relevant to the subsection 35(1) analysis.\n\nIn contrast, nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.\n\nThis textual analysis of paragraph 34(1)(f) is informed by contextual and purposive considerations.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-6", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 24–26", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The first contextual factor is paragraph 34(1)(c) of the Act which renders a person inadmissible for “engaging in terrorism”. Thus, paragraph 34(1)(c) of the Act contemplates actual participation in acts of terrorism, while paragraph 34(1)(f) is only concerned with membership in a terrorist organization. On the appellant’s interpretation of “membership”, paragraph 34(1)(c) would be redundant.\n\nMoreover, as noted by the Federal Court in Nassereddine v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, 22 Imm. L.R. (4th) 297, at paragraph 74, while paragraph 34(1)(c) could possibly engage a consideration of complicity, this provision is not relevant to the finding under review that the appellant is inadmissible as a result of his membership in the TNA.\n\nThe second contextual factor is section 42.1 of the Act which permits the Minister to find a person not to be inadmissible pursuant to section 34 if the Minister is satisfied that such a finding is not contrary to the national interest. Because of the very broad range of conduct that gives rise to inadmissibility under paragraph 34(1)(f), the Minister is given discretion to grant relief against inadmissibility. There is no similar relieving provision applicable to a finding of inadmissibility under paragraph 35(1)(a). A relieving provision is not required where inadmissibility flows from the commission of an offence whether as perpetrator or accomplice.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-7", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 27–31", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, I note that the purposes underlying subsection 34(1) and paragraph 35(1)(a) are very different. Paragraph 34(1)(f) is animated by security concerns. This purpose is served by a wide definition of membership. In contrast, paragraph 35(1)(a) guards against abuse of the Refugee Convention by those who create refugees: those who create refugees are not refugees themselves (Ezokola, at paragraph 34).\n\nHaving concluded that Ezokola does not compel any change to the legal test used to establish membership, I next consider the reasonableness of the decision of the Immigration Division.\n\nAs explained above, the Immigration Division found that the appellant’s membership in the TNA constituted membership in the LTTE. I conclude on the basis of the evidentiary record before the Immigration Division that its decision was reasonable.\n\nThat said, great caution must be exercised when finding membership in one organization to be a proxy for membership in another. Particularly in the context of nationalist or liberation movements, the mere sharing of goals and coordination of political activities may well not justify this type of analysis.\n\nWith respect to consideration of the reasonableness of the decision of the Immigration Division in this case, there were three distinct categories of evidence before it: third-party country condition reports, the appellant’s own statements and the appellant’s contacts with senior LTTE leadership.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-8", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "para 32", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted by the Immigration Division at paragraphs 28 to 42 of its reasons, the third-party country condition documentation included the following information about the LTTE’s influence over the TNA: • A Jane’s World Insurgency and Terrorism Report noted the LTTE’s instruction to Tamil leaders to join the TNA and that the LTTE head-office selected the TNA’s nominees in the 2004 election. The LTTE was said to have then launched a massive campaign in favour of TNA candidates. The campaign included the killing of several anti-TNA candidates and their supporters (Appeal Book, Volume 2, Tab 8, at pages 514-515). • A UNHCR “Background Paper on Refugees and Asylum-Seekers from Sri Lanka” reported the LTTE announced support for the TNA and further reported that candidates from rival parties were killed, allegedly by the LTTE (Appeal Book, Volume 4, Tab 13, at page 1017). • A chapter in “The Political Handbook of the World: 2005-2006” described the 2004 elections as “the first time the TNA explicitly served as the proxy of the LTTE, winning 22 seats in the north and east” (Appeal Book, Volume 2, Tab 7, at page 439). • An Amnesty International report covering Sri Lanka for 2005 reported that “[t]he LTTE-affiliated Tamil National Alliance (TNA) took the majority of seats in the north-east, where elections were marred by vote rigging, intimidation and violence” including the killing of rival candidates (Appeal Book, Volume 4, Tab 13, at page 1077).", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-9", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "para 32", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "• A BBC News report quoted the appellant as saying: “To us the LTTE is the only movement that counts and [Tigers’ chief Velupillai] Prabhakaran is the only leader who counts”; the election was more a referendum on the armed struggle; and “[t]he world is saying, alright you fought and did some wonders but what guarantee is there that you have the backing of the people, […] this election will prove 70% to 80% of the Tamil people back the rebels” (Appeal Book, Volume 2, Tab 7, at pages 380-381). • The 2001 TNA election manifesto stated that in 50 years no just solution was found to the Tamil national question: Consequently, it was inevitable, that the armed struggle gained in strength, and the Liberation Tigers of Tamil Eelam came to occupy a paramount position, and play a pivotal role in the struggle of the Tamil nationality to win their rights. It would be futile not to recognize this reality. (Appeal Book, Volume 2, Tab 7, at page 294) • The 2004 election manifesto of the TNA advised: Accepting LTTE’s leadership as the national leadership of the Tamil Eelam Tamils and the Liberation Tigers as the sole and authentic representatives of the Tamil people, let us devote our full cooperation for the ideals of the Liberation Tigers’ struggle with honesty and steadfastness. Let us endeavour determinedly, collectively as one group, one nation, one country, transcending race and religious differences, under the leadership of the LTTE for a life of liberty, honour and justice for the Tamil people. Let us work side by side with the LTTE, who are fighting for the protection and autonomous life of the Tamil speaking people, for the political initiatives under their leadership.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-10", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 32–33", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "[Emphasis added.] (Appeal Book, Volume 2, Tab 7, at page 292) • The International Crisis Group reported in 2008 that the TNA’s platform was “pro-LTTE” and the TNA members of parliament chose “not to risk taking political positions independent from the LTTE” (Appeal Book, Volume 4, Tab 13, at page 1233). • In a speech delivered in South Africa, the appellant stated “And we the Eelam Tamils have decided to fight. We shall fight, but we want your help. We shall fight in the sea; we shall fight in the air: we shall fight in the land and when we fight it out and we have nothing but blood, toil and tears to give to our country” (Appeal Book, Volume 6, Tab 17, at pages 1644-1645).\n\nIn an interview conducted by an Inland Enforcement Officer, the appellant stated that the LTTE leader, Prabhakaran, had not initiated the TNA but “would have given his blessings” because “they are both fighting for the same cause” and he “knew that the TNA is being formed for Tamil cause” (Appeal Book, Volume 1, Tab 6, at pages 172-173). The appellant agreed “that TNA members were aligned with LTTE in Tamil cause” (Appeal Book, Volume 1, Tab 6, at page 182). Before the Immigration Division the appellant testified that while the LTTE’s violence was not ideal, “mass confrontation of the government was something unavoidable though unpalatable” (Appeal Book, Volume 6, Tab 18, at page 1678).", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-11", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 34–36", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant admitted to attending a number of meetings with senior members of the LTTE and his shared goals with the LTTE. He stated his view of the inevitability of the LTTE’s armed struggle. Specifically: • The appellant quoted Prabhakaran as stating “we had to join the work as a team” with “[the LTTE] agitating the armed struggle and [the TNA] agitating Parliament struggle only, we call it the over ground movement” (Appeal Book, Volume 1, Tab 6, at page 177). • While denying that he received “directions” from Prabhakaran, the appellant considered the TNA parliamentary agitation “running parallel” with and sharing the “goal” of the LTTE (Appeal Book, Volume 1, Tab 6, at page 184). • While his own role was limited to parliamentary activism, the appellant considered armed struggle to be “part of any freedom struggle” and considered the LTTE’s armed struggle “unavoidable” (Appeal Book, Volume 1, Tab 6, at page 199).\n\nThe appellant argues that the Immigration Division ignored evidence that was favourable to the appellant.\n\nHowever, it is settled law that an adjudicator is not required to refer to every piece of evidence. More importantly, the evidence before the Immigration Division was conflicting. The reasons of the Immigration Division demonstrate that the member sifted through the record and was alive to the appellant’s challenge to the credibility of certain documents. The Immigration Division’s findings were amply supported on the record before the Immigration Division.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-12", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 37–38", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 33 of the Act requires only “reasonable grounds to believe” that facts giving rise to inadmissibility are present. In my view, the Immigration Division’s conclusion that there were “reasonable grounds to believe” in this case was within the range of outcomes acceptable and defensible on the facts and the law. The decision was therefore reasonable.\n\nFor these reasons, I would dismiss the appeal. I would answer the certified question as follows: Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 does not change the existing legal test for assessing membership in terrorist organizations under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. “Eleanor R. Dawson” J.A. “I agree. David Stratas J.A.” “I agree. Richard Boivin J.A.”", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-35313-1", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 1–5", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The issue in this appeal is whether the appellant is a member of a criminal organization so as to deny him the right of appeal to the Immigration Appeal Division (the IAD) on the question of whether he is inadmissible pursuant to paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).\n\nThis is an appeal against the decision of the Federal Court, dated September 6, 2005, reported as (2005), 258 D.L.R. (4th) 303, which upheld the decision of the Immigration Division of the Immigration and Refugee Board (the Board), wherein it issued a deportation order against the appellant on the grounds of organized criminality pursuant to paragraph 37(1)(a) of the IRPA.\n\nThe following questions were certified by the Judge: (a) Do the words “being a member of an organization” in paragraph 37(1)(a) of the IRPA include a person who was not a member at the time of reporting but was a member before that time? (b) What constitutes an “organization” within the meaning of paragraph 37(1)(a) of the IRPA, and does the A.K. Kannan gang fit within that meaning?\n\nThe appellant raised an additional issue as to whether the Judge erred in determining that the Board was entitled to consider certain police officers’ reports and testimony, in particular evidence about alleged criminal activity that was not followed by charges or convictions.\n\nThe facts may be briefly summarized. The appellant is a 35‑year-old citizen of Sri Lanka. He arrived in Canada in February 1990 and made a successful claim to be a Convention refugee. He became a permanent resident on July 17, 1992.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-2", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 6–8", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant has three criminal convictions: (1) failing to comply with a recognizance, dated January 24, 1992; (2) trafficking in a narcotic, dated July 8, 1996; and (3) obstructing a peace officer, dated February 1998. The appellant has also been investigated but never charged for gang‑related occurrences for his role in numerous offences which included attempted murder, assault with a weapon, aggravated assault, possession of a weapon dangerous to the public, pointing a firearm and using a firearm to commit an offence, threatening, extortion, and trafficking.\n\nThe appellant was identified by the Toronto police as the leader of A.K. Kannan, one of two rival Tamil gangs operating in Toronto. The appellant admitted his former involvement in the gang to police. He also admitted, in a statement to police on April 9, 2001, that his nickname is “A.K. Kannan”, the same name of the group of which he is alleged to be a member.\n\nThe appellant was reported under paragraph 27(1)(d) [as am. by S.C. 1992, c. 49, s. 16(F)] of the Immigration Act, R.S.C., 1985, c. I‑2 (repealed) (the former Act), by virtue of his drug trafficking conviction. He was subsequently reported under paragraph 27(1)(a) [as am. idem] and 19(1)(c.2) [as am. by S.C. 1996, c. 19, s. 83] of the former Act as a person for whom there are reasonable grounds to believe is engaged in activity planned and organized by a number of persons acting together to commit criminal offences. The allegation was that the appellant “is or was a member of an organization known as the A.K. Kannan gang”.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-3", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 9–12", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "An inquiry under the former Act commenced in January 2002. When the IRPA came into force in June 2002, the inquiry continued under sections 36 and 37 of the IRPA. The appellant conceded that he was a person described in section 36 due to his drug trafficking conviction, but he disputed the organized criminality allegation.\n\nThe importance of the inquiry to the appellant was that, unless he was found not to be a person described in paragraph 37(1)(a) of the IRPA, the appellant would be deported to Sri Lanka without a right of an appeal to the IAD, having regard to subsection 64(1) of the IRPA.\n\nThe Board made a finding on October 4, 2004 that the appellant is inadmissible for organized criminality pursuant to paragraph 37(1)(a) of the IRPA because he was a member of an organization, the A.K. Kannan gang, believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable by indictment under an Act of Parliament. Being unable to appeal to the IAD, the appellant applied for judicial review to the Federal Court.\n\nOn judicial review, the Federal Court Judge upheld the Board’s determination regarding the appellant’s inadmissibility to Canada. That decision is the subject of this appeal.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-4", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 13", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The provisions in the IRPA most relevant to this appeal are as follows. Objectives – Immigration Objet en matière d’immigration 3.(1) The objectives of this Act with respect to immigration are 3.1 En matière d’immigration, la présente loi a pour objet: … […] (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité; … […] Rules of interpretation Interprétation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-5", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 13", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "… […] Organized criminality Activités de criminalité organisée 37.(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for 37.(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants : (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan; (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-6", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 13–16", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) The following provisions govern subsection (1): (2) Les dispositions suivantes régissent l’application du paragraphe (1): (a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and (a) les faits visés n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national; (b) paragraph (1) (a) does not lead to a determination of inadmissibility by reason of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity. (b) les faits visés à l’alinéa (1)a) n’emportent pas interdiction de territoire pour la seule raison que le résident permanent ou l’étranger est entré au Canada en ayant recours à une personne qui se livre aux activités qui y sont visées.\n\nThe first certified question concerns whether the words in paragraph 37(1)(a) “being a member” include a person who was not a member of a criminal organization at the time of the inadmissibility report, but was a member before that time.\n\nThis requires the Court to assess the proper interpretation of the language in paragraph 37(1)(a) of the IRPA. The interpretation of statutes is generally considered to be a question of law; therefore, the standard of review to be applied on this appeal of the case is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraph 8.\n\nThe Federal Court Judge held that paragraph 37(1)(a) includes a person who was a member of a criminal organization before the inadmissibility report. For the following reasons, I agree.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-7", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 17", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, this meaning is consistent with the wording of the former Act. Paragraph 19(1)(c.2) of the former Act specifically referred to those who “are or were members”. It read: Inadmissible persons Personnes non admissibles 19.(1) No person shall be granted admission who is a member of any of the following classes: 19.(1) Les personnes suivantes appartiennent à une catégorie non admissible : …. […] (c.2) persons who there are reasonable grounds to believe are on were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and substances Act that my be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; c.2) celles dont il y a des motifs raisonnables de croire qu’elles sont ou ont été membres d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l’étranger un fait—acte ou omission—qui, s’il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l’intérêt national;", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-8", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 18–20", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "One of Parliament’s objectives when enacting the IRPA was to simplify the former Act. Section 33 does just that: it reduces the necessary repetition of the phrases denoting past, present and future membership in the former Act by establishing a “rule of interpretation” that permits a decision maker to consider past, present and future facts when making a determination as to inadmissibility.\n\nIf one were to interpret paragraph 37(1)(a) as including only present membership in an organization, it would, in effect, render section 33 redundant. The Board said (at page 49), and I concur, that consideration of evidence of a person’s history and future plans would be relevant to the question of whether a person is currently a member of an organization described in section 37, even without codification to such effect in legislation.\n\nIn my view, Parliament must have intended section 33 to have some meaning. The language of section 33 is clear that a present finding of inadmissibility, which is a legal determination, may be based on a conclusion of fact as to an individual’s past membership in an organization. In other words, the appellant’s past membership in the A.K. Kannan gang, a factual determination, can be the basis for a legal inadmissibility finding in the present.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-9", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 21–22", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, this interpretation is consistent with the purpose of the inadmissibly provisions and the IRPA as a whole. The inadmissibility provisions have, as one of their objectives, the protection of the safety of Canadian society. They facilitate the removal of permanent residents who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism. If one were to interpret “being a member” as including only present membership in an organization described in paragraph 37(1)(a), this would have a contrary effect, by narrowing the scope of persons who are declared inadmissible, thereby increasing the potential risk to Canadian safety.\n\nThird, if the Court were to interpret “being a member” as including only current members, it would lead to absurd results that could not have be intended by Parliament. This would mean that sections 34 (terrorism/security), 35 (crimes against humanity), and 37 (organized criminality) of the IRPA, all of which use the wording “being a member” or “being a prescribed senior official,” would only refer to current circumstances.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-10", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 23–24", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "Such an interpretation would also mean that a former member of the Nazi party in Germany could not be found inadmissible because the Nazi party no longer exists, so that he is no longer a member. It would mean that a member of an international terrorist organization could renounce his or her membership immediately prior to making a refugee claim, and would not be inadmissible because he is not a current member of a terrorist organization. It would also mean that a person who spends 10 years as a member of an organization engaged in criminal activities within Canada could withdraw from the organization before being reported under the IRPA and avoid a finding of inadmissibility.\n\nFourth, the jurisprudence supports this interpretation. In Zündel (Re) (2005), 251 D.L.R. (4th) 511 (F.C.), the Federal Court addressed whether past wrongdoing can constitute the basis for inadmissibility under section 34 of the IRPA. Pursuant to paragraph 34(1)(f), a person can be found to be inadmissible for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a) [espionage], (b) [subversion by force of any government] or (c) [terrorism].” Blais J. held (at paragraph 18) that an admissibility determination under section 34 cannot be restricted to present circumstances. Pursuant to section 33, “the [Minister] can provide evidence or information of past, present or anticipated future circumstances of . . . inadmissibility on security grounds.”", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-11", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 25", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "More recently, in Charkaoui (Re), [2005] 2 F.C.R. 299 (F.C.A.), appeal to the Supreme Court of Canada [reversed on (2007), 358 N.R. 1, 2007 SCC 9] granted, this Court was concerned with whether there were reasonable grounds to believe that Charkaoui was inadmissible pursuant to section 34 on account of being a member of a terrorist organization. Décary and Létourneau JJ.A. stated (at paragraph105): “inadmissibility must be based, under section 33 of the IRPA, on the Minister’s reasonable grounds to believe that the acts or omissions referred to in sections 34 to 37 have occurred, are occurring or, if preventive considerations are involved, may occur.”", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-12", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 26–27", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "This issue was also addressed by Russell J. in the decision of Hussenu v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 137 (F.C.). There, Hussenu argued that he was not inadmissible under paragraph 34(1)(f) of the IRPA because he had ceased to be a member of the Eritrean Liberation Front immediately prior to making a refugee claim. The Court denied the appeal, stating (at paragraph 39): Section 34(1)(f) of IRPA does use the words “being a Member of an organization . . .,” but s. 33 specifically provides that “ . . . facts that constitute inadmissibility under ss. 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts from which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” [emphasis added]. If the Applicant’s argument concerning s. 34(1)(f) were correct on this issue, then s. 34 would not apply to a terrorist who resigns his or her membership in a terrorist organization immediately prior to making a refugee claim. It could not have been Parliament’s intent to exclude such an applicant from the purview of s. 34(1)(f) and s. 33 makes this position clear.\n\nThe appellant submits that an interpretation of paragraph 37(1)(a) as including past members would not permit absolution for persons who were associated with criminal organizations in the past, realized that it is not what they wanted to do with their life, and genuinely withdrew without having engaged in criminal activity.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-13", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 28–31", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "This argument is not persuasive. Subsection 37(2) of the IRPA is intended to alleviate the harshness of the inadmissibility rule where, as the appellant suggests, there is evidence of a person’s genuine withdrawal from membership. Provided the permanent resident can satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest, the inadmissibility rule in paragraph 37(1)(a) could be overcome.\n\nBased on all of the above, I answer the first certified question in the affirmative.\n\nThe second certified question in this appeal requires the Court to determine what constitutes an “organization” within the meaning of paragraph 37(1)(a), and in particular, does the A.K. Kannan gang fit within that meaning?\n\nThe answer to the first part of the question, the proper meaning of the word “organization” in view of paragraph 37(1)(a), is a legal determination and is to be reviewed on a correctness standard: Housen, at paragraph 8.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-14", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 32–33", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The answer to the second part of the question, whether the A.K. Kannan gang falls within the meaning of “organization” for the purposes of paragraph 37(1)(a), is a mixed question of fact and law; it involves applying the legal standard to the facts and evidence in each particular case. In Housen, at paragraph 36, the Supreme Court said: Matters of mixed fact law lie along a spectrum. Where, for instance, an error. . .can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. . . . Where the legal principle is not readily extractible, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.\n\nUnless this Court finds that the Judge incorrectly characterized the law as regards paragraph 37(1)(a), the Judge’s decision that the A.K. Kannan gang falls within the meaning of “organization” will not be reviewed in the absence of a palpable and overriding error: Housen, at paragraph 10.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-15", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 34–35", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The word “organization” is not defined in the IRPA. The appellant submits that the lack of a statutory definition creates a danger of courts over‑reaching to cover the broadest range of criminal action that may appear to be taken in association with others. According to the appellant, a precise definition is required given the serious consequences of inadmissibility and the fact that membership alone constitutes inadmissibility. In reliance on international law and criminal jurisprudence, the appellant argues that for the purpose of paragraph 37(1)(a), an “organization” must, at minimum, have a common criminal purpose and a sufficient structure to allow the benefits of its illegal conduct to be shared.\n\nIn contrast with this submission, in the case of Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 (F.C.T.D.), Rothstein J., as he then was, held that the term “member” (of an organization), found in subparagraph 19(1)(f)(iii) [as am. by S.C. 1992, c. 49, s. 11] of the former Act, dealing with terrorism and espionage threats to Canadian security, was to be given an unrestricted and broad interpretation. He said, at paragraph 52: The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not easily identifiable. . . . I think it is obvious that Parliament intended the term “member” to be given an unrestricted and broad interpretation. I find no support for the view that a person is not a member as contemplated by the provision if he or she became a member after the organization stopped engaging in terrorism.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-16", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 36–37", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the same “unrestricted and broad” interpretation should be given to the word “organization” as it is used in paragraph 37(1)(a). The IRPA signifies an intention, above all, to prioritize the security of Canadians. This was confirmed by the Supreme Court of Canada in the decision of Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at paragraph 10: The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. . . . the objectives of the IRPA and its provisions concerning permanent resident, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.\n\nParagraph 37(1)(a) appears to be an attempt to tackle organized crime, in recognition of the fact that non‑citizen members of criminal organizations are as grave a threat as individuals who are convicted of serious criminal offences. It enables deportation of members of criminal organizations who avoid convictions as individuals but may nevertheless be dangerous.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-17", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 38", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "Recent jurisprudence supports this interpretation. In Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301 (F.C.), reversed on other grounds, [2006] 1 F.C.R. 474 (F.C.A.), O’Reilly J. took into account various factors when he concluded that two Tamil gangs (one of which was the A.K. Kannan gang at issue here) were “organizations” within the meaning of paragraph 37(1)(a) of the IRPA. In his opinion, the two Tamil groups had “some characteristics of an organization”, namely “identity, leadership, a loose hierarchy and a basic organizational structure” (at paragraph 31). The factors listed in Thanaratnam, as well as other factors, such as an occupied territory or regular meeting locations, both factors considered by the Board, are helpful when making a determination under paragraph 37(1)(a), but no one of them is essential.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-18", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 39–40", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "These criminal organizations do not usually have formal structures like corporations or associations that have charters, by-laws or constitutions. They are usually rather loosely and informally structured, which structures vary dramatically. Looseness and informality in the structure of a group should not thwart the purpose of the IRPA. It is, therefore, necessary to adopt a rather flexible approach in assessing whether the attributes of a particular group meet the requirements of the IRPA given their varied, changing and clandestine character. It is, therefore, important to evaluate the various factors applied by O’Reilly J. and other similar factors that may assist to determine whether the essential attributes of an organization are present in the circumstances. Such an interpretation of “organization” allows the Board some flexibility in determining whether, in light of the evidence and facts before it, a group may be properly characterized as such for the purposes of paragraph 37(1)(a).\n\nWith respect to the appellant’s argument that criminal jurisprudence and international instruments should inform the meaning of a criminal “organization”, I disagree. Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of “criminal organization” as it appears in subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, s. 32, s. 27] of the Criminal Code, R.S.C., 1985, c. C‑46. Nor did it adopt the definition of “organized criminal group” in the United Nations Convention against Transnational Organized Crime [November 2000, GA Res. 55/25] (the Convention). The wording in paragraph 37(1)(a) is different, because its purpose is different.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-19", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 41–45", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this case, the Judge, as did the Board, correctly considered the legislation and applied the law as set out in Thanaratnam, in the interpretation of the term “organization.” Accordingly, I find no error of law relating to the first part of the certified question.\n\nWith respect to the second part of the certified question, the appellant argues that the Judge committed a palpable and overriding error when he upheld the Board’s decision that the A.K. Kannan gang is an organization within the meaning of paragraph 37(1)(a). I disagree.\n\nThe Board considered the evidence before it and found that there were six relevant indicia of “organization” for the A.K. Kannan gang in this case: leadership, an elementary form of hierarchy, the giving of instructions from a leader, a specific and identifying name, an occupied territory, and chosen locations for meeting within their specified territory in Ontario. The Board concluded that all of the evidence taken together was sufficient to conclude that A.K. Kannan was an organization, and the Judge, considering the evidence related to most of the same factors, upheld this decision.\n\nThe appellant submits that the Board ignored his testimony that there was no organization and ignored a report prepared for the Canadian Tamil Youth Development Centre (the CTYDC report), which characterizes Tamil gangs as loose associations with no organizational structure.\n\nThe Board concluded that the appellant was not a credible witness, and gave detailed reasons for its conclusion. Further, the Board considered the CTYDC report and discussed it within its reasons. The Board was entitled to weigh the report and give it little effect in the context of the conflicting evidence. The appellant has failed to show that the Board’s decision was perverse or irrational.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-20", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 46–50", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accordingly, the Judge did not commit any palpable and overriding error in upholding the Board’s finding that the A.K. Kannan gang is an “organization” within the meaning of paragraph 37(1)(a) of the IRPA.\n\nParagraph 37(1)(a) of the IRPA applies where an organization of which one is a member is believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment.\n\nThe appellant argues that the Judge erred when he held that the Board was entitled to give weight to the police reports of criminal activity, unsubstantiated by conviction, as evidence of his, or the organization’s, involvement in criminal activity.\n\nIn admissibility hearings the Board is not bound by the strict rules of evidence. Once the tribunal determines that the evidence is credible and trustworthy then it is admissible, and the question of how the evidence was obtained becomes relevant merely as to the weight attached to the evidence: section 173 of the IRPA.\n\nThe jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality: see, for example, Veerasingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1661, at paragraph 11; Thuraisingam v. Canada (Minister of Citizenship and Immigration), (2004) 251 F.T.R. 282 (F.C.), at paragraph 35.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-21", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 51–53", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this regard, I agree with the Judge that the Board did not rely on the police source evidence as evidence of the appellant’s wrongdoing. Rather, it considered the circumstances underlying the charges and contemplated charges—including the frequency of the appellant’s interactions with the police and the fact that others involved were often gang members—to establish that there are “reasonable grounds to believe,” a standard that is lower than the civil standard, that the A.K. Kannan gang engages in the type of activity set out in paragraph 37(1)(a).\n\nThe appellant also submits that the police source evidence in this case is not credible and reliable evidence. Many of the police reports were made before a proper investigation, and were not supported by the testimony of the police officers and witnesses that were involved. Further, the appellant argues that the evidence hinted that the police lacked objectivity; that their view of the appellant was biased.\n\nIn this regard, I find that the Board considered the police source evidence credible and trustworthy in the circumstances of the case, and such a decision is entirely within its discretion. The Board is uniquely situated to assess credibility of evidence in an inadmissibility hearing; credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence: Federal Courts Act, R.S.C., 1985, c. F‑7 [section 1 (as am. by S.C. 2002, c. 8, s. 14)], paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27].", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-22", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 54–56", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant has not demonstrated that the Board’s findings, or the Judge’s acceptance of those facts, were perverse or capricious. Therefore, I find no reviewable error in respect of this issue.\n\nI am satisfied that the Judge correctly interpreted paragraph 37(1)(a) of the IRPA when reviewing the Board’s findings. I would answer the certified questions as follows: (a) The phrase “being a member of an organization” in paragraph 37(1)(a) of the IRPA includes a person who was not a member at the time of the reporting, but was a member before that time. (b) The word “organization”, as it is used in paragraph 37(1)(a) of the IRPA, is to be given a broad and unrestricted interpretation. While no precise definition can be established here, the factors listed by O’Reilly J. in Thanaratnam, by the Board member, and possibly others, are helpful when making a determination, but no one of them is an essential element. The structure of criminal organizations is varied, and the Board must be given flexibility to evaluate all of the evidence in the light of the legislative purpose of the IRPA to prioritize security in deciding whether a group is an organization for the purpose of paragraph 37(1)(a). The A.K. Kannan gang, as found by the Board and the Judge, fits within this meaning.\n\nFor these reasons, I would dismiss the appeal. \"A.M. Linden\" J.A. “I agree. M. Nadon J.A.” “I agree. J. Edgar Sexton J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-31607-1", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 1–3", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal on a certified question from a decision of Gauthier J. dated October 21, 2003. The certified question is: Are the detention reviews made pursuant to s. 57(2) and 58 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, hearings de novo and does the detained person bear the burden of establishing that he/she is not a danger to the Canadian public or not a flight risk at such reviews? FACTS\n\nThe facts may be briefly summarized. The respondent was arrested on October 18, 2001, on an immigration warrant on the grounds that he was a danger to the public because he was one of the leaders of the VVT, a Tamil gang operating in Toronto. His detention was reviewed under the provisions of section 103 of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) and, after it came into force, sections 57 and 58 of the Immigration and Refugee Protection Act (the new Act). At his first five detention reviews, the respondent's continued detention was ordered. On November 5, 2002, his detention was reviewed by Mr. V. Tumir, a member of the Immigration Division of the Immigration and Refugee Board, who ordered him released on conditions. The Minister applied for judicial review and, in the interim, obtained a stay until the next detention review was completed.\n\nThe next detention review was conducted by Mr. A. Iozzo of the Immigration Division, who on March 18, 2003, confirmed the findings of Mr. Tumir and ordered that the respondent be released. The Minister obtained a stay of that order and sought judicial review. It was this judicial review that was the subject matter of the Order of Gauthier J. of October 21, 2003, and which gives rise to this appeal. ISSUES", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-2", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister raises two issues. He first says that detention reviews under the new Act are not de novo and that the detained person bears the burden of proving that previous decisions to detain should be set aside. He then says that Mr. Iozzo made errors of law and patently unreasonable errors of fact. Therefore, he says, Gauthier J. erred in not overturning Mr. Iozzo's decision. RELEVANT PROVISIONS Immigration and Refugee Protection Act 57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention. (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention. ... 57. (1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite. (2) Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent. ... 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); ...", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-3", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. ... 58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants_: a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); ... (2) La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi. ... Immigration and Refugee Protection Regulations, SOR/2002-227 47(2) A person who posts a guarantee must ... (b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and ... 47(2) La personne qui fournit la garantie d'exécution doit : ... b) être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; ... 244.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-4", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act; (b) is a danger to the public; ... 244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation : a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; b) du danger que constitue l'intéressé pour la sécurité publique; ... 245. For the purposes of paragraph 244(a), the factors are the following: ... (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding; (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal; (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so; ... (g) the existence of strong ties to a community in Canada. 245. Pour l'application de l'alinéa 244a), les critères sont les suivants : ... c) le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle; d) le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi; e) le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard; ...", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-5", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "g) l'appartenance réelle à une collectivité au Canada. 246. For the purposes of paragraph 244(b), the factors are the following: ... (b) association with a criminal organization within the meaning of subsection 121(2) of the Act; ... (d) conviction in Canada under an Act of Parliament for ... (ii) an offence involving violence or weapons; ... 246. Pour l'application de l'alinéa 244b), les critères sont les suivants : ... b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi; ... d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes : ... (ii) infraction commise avec violence ou des armes; ... 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. 248. S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé; e) l'existence de solutions de rechange à la détention.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-6", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "Immigration Act 103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where (a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and (b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada. ... (6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-7", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond. ... 103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi. ... (6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparat devant un arbitre aux mêmes fins au moins une fois: a)dans la période de sept jours qui suit l'expiration de ce delai; b)tous les trente jours après l'examen effectué pendant cette période.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-8", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 4–6", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "(7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution. ... THE CERTIFIED QUESTION\n\nThere are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review. Nature of the Hearing\n\nI think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 at 156 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at 166 (C.A.)). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 at 334 (T.D.), Campbell J. held that in a detention review, \"all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made.\" Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-9", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 7–8", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous Members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that: ... the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed ... by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 at 159 (T.D.)).\n\nNothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As Adjudicators did under the former Act, the Immigration Division reviews \"the reasons for the continued detention\" [emphasis added]. Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted. The Treatment of Prior Decisions", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-10", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 9–12", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.\n\nDetention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.\n\nCredibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.\n\nThe best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-11", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 13–15", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way. Burden of Proof\n\nWhen determining who bears the burden of proof at a detention review hearing, it is important to remember that sections 57 and 58 allow persons to be detained for potentially lengthy, if not indefinite, periods of time, without having been charged with, let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 Charter considerations in mind (Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at 225-231 (T.D.)).\n\nSubsection 103(7) of the former Act provided that an adjudicator shall order release if \"satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal.\" Under that provision, Campbell J. held that \"the initial onus of proving continued detention is warranted rests with the proposer of such an order\", i.e. the Minister (Lai at 334). If anything, this holding applies even more strongly to section 58 which provides that \"the Immigration Division shall order the release of the permanent resident or foreign national unless it is satisfied\" that one of the listed conditions is met [emphasis added]. I therefore agree with Gauthier J. that it is the Minister who must establish, on a balance of probabilities, that the respondent is a danger to the public if he wants the detention to continue.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-12", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 16–17", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie cases in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75: ... at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding [sic] the review. MR. IOZZO'S DECISION\n\nThe Minister has attempted to point out a number of inconsistencies in Mr. Iozzo's reasons. For the most part, the Minister is simply arguing that Mr. Iozzo did not properly assess the reliability of the evidence before him. However, as Gauthier J. determined, the Minister has not demonstrated that these factual findings are patently unreasonable.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-13", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 18", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nonetheless, the Minister argues that Mr. Iozzo failed to give clear and compelling reasons to show why he departed from the prior decisions to detain the respondent. In his decision, Mr. Iozzo stated: The decision to be made at this review is a decision de novo, where the previous decisions are considered, and given due deference and respect; ultimately, a new decision must be made on the basis of that member's judgment and assessment of the evidence. ... Deference must be shown to previous decisions, but \"error\" cannot be continued for the sake of consistency.10 In analyzing the records of previous reviews, I have pondered the reasons for detention and the reasons for release provided by previous members. For this review to have any significance, however, I have to make an honest decision on my assessment of all the evidence [Emphasis in original]. 10Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-14", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 19", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "From this statement, it seems apparent that Mr. Iozzo paid appropriate regard to the prior decisions. Mr. Iozzo's disagreement and the reasons for it are clearly implicit in his decision. On page 11 of his reasons, Mr. Iozzo points out that all of the previous members had recognized that there were credibility problems associated with the various witness statements and that even Minister's counsel had conceded before him that there were contradictions and inconsistencies in those statements. He then cites numerous examples of such inconsistencies. He concludes by stating at pages 14-15 that \"at the end of the day, apart [sic] the Court documents entered into evidence and the undisputed facts, I was left with a whole box of material containing statements by untrustworthy people contradicting one another's statements and contradicting their own statements.\"", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-15", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 20", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "Where Mr. Iozzo differed from the decisions of the Members who had ordered the respondent's continued detention was his unwillingness to accept the proposition that \"non-credible statements can become credible by their number, or that a lie many times told by different people becomes the truth\" (page 15). He therefore implicitly rejected the \"common thread\" approach on which the previous decisions were based (see M.C.I. v. Thanabalasingham (18 March 2002), Toronto 0003-A1-02365 at 9 and 19 (I.R.B. (Adj. Div.)), Ms. Gratton; M.C.I. v. Thanabalasingham (28 May 2002), Milton 0003-A1-02365 at 3 (I.R.B. (Adj. Div.)), Ms. Simmie (Adjudication File Summary of Detention Review Hearing); and M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 92 (I.R.B. (Imm. Div.)), Mr. Murrant). Having regard to the need to come to a fresh decision at each detention review, albeit one that pays proper attention to the previous decisions, this conclusion is one which was open to Mr. Iozzo and which Gauthier J. was correct not to disturb.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-16", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 21–22", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister also argues that Mr. Iozzo erred in law in his treatment of the respondent's previous convictions. The Minister says that Mr. Iozzo incorrectly held that previous convictions alone could not support a finding that a detainee is a danger to the public. I agree with Gauthier J. that: Mr. Iozzo could have described in more detail his reasoning, but his failure to do so does not constitute a reviewable error when it is clear from his decision itself that he had considered all the evidence relating to the context of those convictions and, nevertheless, declared himself not satisfied that they alone could support a detention order (paragraph 124). Mr. Iozzo did not hold that previous convictions alone could never support a danger finding; rather, he held that these particular convictions could not do so in the circumstances of this case. I agree with Gauthier J. that such a finding was reasonably open to him.\n\nFinally, the Minister argues that Mr. Iozzo erred in approving proposed guarantors because he did not consider whether they were \"able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed\" as required by paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations and because the proposed guarantors would not be able to assert sufficient control over the respondent.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-17", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 23–24", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although Mr. Iozzo did not expressly refer to paragraph 47(2)(b), he did consider whether the proposed guarantors would be adequately able to control the respondent if he were released. He agreed with Mr. Tumir and Mr. Murrant who had concluded that substantial bonds would be sufficient to address this concern. Mr. Tumir (M.C.I. v. Thanabalasingham (5 November 2002), Milton 0003-A1-02365 at 25-26 (I.R.B. (Imm. Div.))) and Mr. Murrant (M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 90-91 (I.R.B. (Imm. Div.))) had already specifically addressed and rejected this concern. It was not unreasonable for Mr. Iozzo to rely on their findings on this point. CONCLUSION\n\nThe reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-18", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 25", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention. \"Marshall Rothstein\" J.A. \"I agree A.J. Stone J.A.\" \"I agree K. Sharlow J.A.\" FEDERAL COURT OF APPEAL", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-305100-1", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 1–3", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This appeal is from the judgment of Crampton C.J. of the Federal Court (2016 FC 1199), granting five consolidated applications by the Minister for judicial review, setting aside the five corresponding orders issued by members of the Immigration Division of the Immigration and Refugee Board releasing the appellant from immigration detention on conditions, and remitting the question of release or continued detention to Member Cook of the ID, who made the most recent of the five orders.\n\nIn both their written and their oral submissions the parties focused on the application judge’s decision with respect to the order of Member Cook, which superseded the four earlier orders. It is appropriate to do the same in these reasons.\n\nHowever, my doing so leads me reluctantly but inescapably to the conclusion that this Court lacks jurisdiction to decide the appeal. The question as certified by the application judge, on which this Court’s jurisdiction depends, does not in my respectful view meet the well-established criteria for certification, and reformulation of the question would not render it compliant. I say “reluctantly” because the appeal was well and fully argued on the merits, and because underlying the certified question may well be a serious legal question of general importance that, as the application judge suggested, calls for further judicial consideration. But the question as framed is not dispositive of the appeal as it was argued, so that deciding the appeal would take the Court outside the role that Parliament envisaged for it in immigration matters. I see no alternative therefore but to dismiss the appeal.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-2", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 4–6", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In explaining why I reach this conclusion, I will first briefly outline the scheme of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as it relates to removal orders, detention and release. Next, I will set out the relevant background, addressing the circumstances relating to the appellant’s detention, Member Cook’s decision, and the decision on judicial review. I will then consider in more detail the requirements that a certified question must meet and how in my view those requirements are not met in this case. I appreciate that all of this is a rather lengthy prelude to a decision that ultimately does not address the merits of the appeal, but the context may nonetheless prove helpful in grounding the disposition that I propose.\n\nThe Immigration and Refugee Protection Act establishes a framework for immigration to Canada and the grant of refugee protection. The objectives of the IRPA are set out in subsection 3(1). By paragraphs 3(1)(h) and 3(1)(i), they include the protection of public health and safety and the security of Canadian society and the promotion of international justice and security by fostering respect for human rights and denying access to Canadian territory to persons who are criminals or security risks.\n\nBy sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, violation of human or international rights, serious criminality, criminality or organized criminality. A removal order is enforceable if it has come into force and is not stayed (subsection 48(1)). If a removal order is enforceable, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (subsection 48(2)).", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-3", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 7–9", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Act authorizes the arrest and detention of a permanent resident or foreign national who there are reasonable grounds to believe is inadmissible and a danger to the public or unlikely to appear for removal from Canada or at a proceeding that could lead to removal (subsection 55(1)).\n\nWithin 48 hours of arrest, the Immigration Division of the Immigration and Refugee Board is required to review the reasons for detention (subsection 57(1)). Following this initial review, the ID must conduct additional reviews within seven days and at least once every 30 days thereafter (subsection 57(2)).\n\nIn a detention review, the ID must assess whether there are grounds for detention: whether, among other things, the detainee is a danger to the public, a flight risk, or a foreign national whose identity has not been established. Unless it is satisfied that one or more of the specified grounds is made out, it must order the detainee’s release (subsection 58(1)). By paragraph 245(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227, the assessment whether there is a flight risk includes consideration of the detainee’s voluntary compliance with any previous departure order and, therefore, compliance with subsection 48(1) of the IRPA, which as set out above requires a foreign national to leave Canada immediately as soon as a removal order becomes enforceable.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-4", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 10–12", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "By subsection 247(1) of the Regulations, in assessing whether the identity ground is established, the ID must consider among other things the detainee’s cooperation, including whether the detainee provided or assisted the Department of Citizenship and Immigration in obtaining evidence of identity, or provided his or her date and place of birth and parents’ names. Subsection 16(3) of the Act authorizes an immigration officer to require or obtain from a detainee any evidence that may be used to establish identity.\n\nIf any of the specified grounds of detention are established, the ID is obliged to consider the factors set out in section 248 of the Regulations before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. These factors, which originated in the decision in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at p. 231, 85 F.T.R. 99 at para. 31, were incorporated into the Regulations in 2002.\n\nIf the ID orders release, it may impose any conditions that it considers necessary (IRPA, subsection 58(3)). The person concerned may apply to vary these conditions on the basis that they are no longer necessary to ensure compliance with the Act (Tursunbayev v. Canada (Public Safety and Emergency Preparedness), 2014 FC 5, 21 Imm. L.R. (4th) 302 at para. 31).", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-5", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 13–14", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant came to Canada in 1994, and was granted refugee status in 1996. He asserts that he is Jacob Damiany Lunyamila, a citizen of Rwanda, born there in September 1976. However, his identity has not been established. Among other things, he has no Rwandan identity documents, and the file associated with his refugee claim was destroyed years ago in accordance with standard Immigration and Refugee Board document retention policies.\n\nIn the period from January 1999 to June 2013, Mr. Lunyamila was charged with 94 criminal offences and convicted of 54. It appears that a number of the convictions were connected to alcohol addiction and mental health issues. In July 2012, Mr. Lunyamila was found inadmissible for criminality under paragraph 36(2)(a) of the IRPA. A deportation order was issued against him in August 2012. After a conviction for sexual assault, he was also found inadmissible for serious criminality under paragraph 36(1)(a) of the IRPA. In May 2014, a danger opinion was issued under paragraph 115(2)(a) of the IRPA, declaring that he was a danger to the public and that the risk to the Canadian public outweighed any risk he would face on return to Rwanda and any humanitarian and compassionate considerations. Leave to seek judicial review was denied.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-6", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 15–17", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Lunyamila was arrested and detained under section 55 of the IRPA in June 2013. His detention was initially continued on the grounds that he was both a flight risk and a danger to the public. On the second 30 day review, he was ordered released on conditions. The conditions included a requirement that he live at a specified addiction rehabilitation facility, complete its three month program and abide by its rules and regulations. However, he left the facility after two days and was rearrested. He has remained in detention since September 2013.\n\nUntil January 2016, successive 30 day reviews resulted in orders for continued detention, at first on flight risk and danger grounds, and then on identity grounds as well. However, beginning in January 2016 ID members issued a series of orders for Mr. Lunyamila’s release. Each of these orders was stayed, and two of them – those issued in January and February 2016 – were set aside by the Federal Court on judicial review (2016 FC 289). A further five release orders, including the order made by Member Cook, were the subject of the consolidated applications that led to this appeal.\n\nFollowing the issuance of the danger opinion in May 2014, the CBSA took steps to deport Mr. Lunyamila to Rwanda. Since Mr. Lunyamila did not have a Rwandan passport or other travel document, the Canada Border Services Agency contacted the Rwandan High Commission to ascertain the requirements for him to obtain one. The CBSA was informed that the requirements included providing certified copies of Rwandan identity documents and a statutory declaration affirming a willingness to return to Rwanda.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-7", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 18–21", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Lunyamila had stated that he did not have the required identity documents. Despite ten separate requests by CBSA officers – in June, July, November and December 2014, and February, May, July, August, November and December 2015 – he also refused to sign the required statutory declaration. In response to several of these requests, he stated, in effect, that he would never sign and would never cooperate with his deportation.\n\nIn November 2013 and in 2014, the CBSA received information suggesting that Mr. Lunyamila was actually a person with a different name and birth date who was a citizen of Tanzania. However, the CBSA’s investigation of this information led to a different individual, and the possibility that Mr. Lunyamila was Tanzanian was not pursued further at that time.\n\nThe CBSA recommenced its investigation in February 2015 when it received further information linking Mr. Lunyamila to Tanzania. It explored retaining a private investigator, made inquiries of the Tanzanian police, and arranged for a linguistic analysis, which was conducted in May 2016. The analysis concluded that it was “very likely” that Mr. Lunyamila’s linguistic background was Tanzanian, and “very unlikely” that it was Rwandan. The CBSA also sent fingerprints for analysis by Tanzanian authorities, and arranged an interview of Mr. Lunyamila by Tanzanian consular officials in September 2016.\n\nMr. Lunyamila has cooperated to some degree with this investigation, including by participating in the linguistic analysis, but he has also provided contradictory and nonsensical information in response to inquiries about his connection to Tanzania.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-8", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 22–24", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In September 2016, Member Cook made an order for Mr. Lunyamila’s release from detention, subject to conditions. Although the member was satisfied that all three grounds for continued detention asserted by the Minister – danger, flight risk and identity – were made out, he found that the risks could be sufficiently mitigated by the conditions that he imposed.\n\nIn concluding that Mr. Lunyamila remained “very much a flight risk”, and that it was very unlikely that he would appear voluntarily for removal if released, the member observed that Mr. Lunyamila had done everything in his power to prevent removal to Rwanda, including refusing to sign the declaration required for a Rwandan-issued travel document. Mr. Lunyamila seemed to have figured out, the member stated, that without his cooperation in signing the declaration the CBSA could not remove him.\n\nWith respect to identity, the member stated that “the Minister was making reasonable efforts to establish [Mr. Lunyamila’s] identity.” He noted that the Minister was “undertaking a legitimate investigation […] that [was] capable of uncovering significant evidence,” and stated that it would be improper for him to speculate on what the investigation might uncover. He found the Minister’s efforts to confirm whether Mr. Lunyamila was Tanzanian, while “not perfect,” were reasonable.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-9", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 25–26", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having concluded that the three grounds for continued detention were established, Member Cook then turned to the factors set out in section 248 of the Regulations. He found that the first factor, the grounds for detention, weighed in favour of continuing detention. Mr. Lunyamila had been detained because he was a danger to the public, he was a flight risk, and his identity could not be established. The member stated that he had given this factor significant weight, since the danger factor alone was justification for a lengthy detention.\n\nThe member analyzed the second and third factors – the length of time in detention and whether the length of time that detention is likely to continue can be ascertained – together. He found that detention for three years amounted to lengthy detention, and that the length of Mr. Lunyamila’s further detention could not reasonably be anticipated. He concluded that these factors favoured release.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-10", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 27–28", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Member Cook noted that the reason for both the lengthy detention and the inability to ascertain the duration of continued detention was the same: the Minister did not have a valid travel document that would permit Mr. Lunyamila’s removal. His case was now “at a stalemate”: the Minister required Mr. Lunyamila’s cooperation to have any prospect of obtaining a Rwandan travel document, but he had refused to cooperate and had stated that he would never cooperate. Although the member acknowledged that Mr. Lunyamila’s cooperation in signing a declaration could lead to a valid travel document, he also noted that cooperation would not guarantee removal because Mr. Lunyamila also lacked the identity documents that Rwanda appeared to require. The Minister was unable to state whether Rwandan authorities would waive this requirement. As for the potential removal to Tanzania, the member found there was no way to reasonably anticipate whether Mr. Lunyamila was actually Tanzanian and how long a removal to Tanzania might take. There was therefore no timeline for the anticipated conclusion of the immigration process: Mr. Lunyamila’s “detention moving forward [was] indefinite” (2016 FC 1199 at paragraph 102).\n\nThe member determined that responsibility for the lengthy detention and uncertainty as to the length of future detention should be apportioned equally to both parties. He assigned a large portion of responsibility for the delay to Mr. Lunyamila. He stated that Mr. Lunyamila’s consistent refusal to cooperate in signing the declaration had stalled his removal at the travel document acquisition stage since 2014, and suggested that the detention might have already ended had he cooperated.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-11", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 29–30", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the member also found that the Minister must share the responsibility. Despite the “stalemate” and knowledge that Mr. Lunyamila was not prepared to sign the declaration, the Minister had not undertaken alternative measures to remove him. The member acknowledged that there might not in fact be any alternatives. He also acknowledged that the Minister was now focused on Tanzania as a possible alternate destination for removal. However, he was critical of the Minister’s delay in pursuing the possibility of Tanzanian identity when information to this effect first came to light in 2013. The member accordingly found that the factor of delay and lack of diligence was neutral and favored neither continued detention nor release.\n\nThe member then turned to the last factor, alternatives to detention. He stated that any alternatives must “on balance […] have a likelihood of mitigating the grounds for detention that have been established.” He expressed his belief that if Mr. Lunyamila agreed to comply with all of the conditions he set out, “the grounds for detention [could] be mitigated to a degree whereby [his] release pending removal can be manageable” (2016 FC 1199 at paragraph 104).", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-12", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 31–32", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Member Cook set out a total of nine conditions. Condition 1 was that prior to release Mr. Lunyamila sign the declaration requested by Rwanda. Member Cook rejected the suggestion made by another ID member in an earlier review that this condition would amount to “disguised detention” given Mr. Lunyamila’s past refusals to sign. Member Cook reasoned that because Mr. Lunyamila was a criminal and a danger to the public, this condition and Mr. Lunyamila’s deportation were consistent with the immigration objectives, set out in paragraphs 3(1)(h) and (i) of the IRPA, of protecting public health and safety, maintaining the security of Canadian society, and denying criminals access to Canadian society. The condition was also consistent with the obligation imposed by subsection 48(2) of the Act on Mr. Lunyamila to leave Canada immediately, and the obligation on the CBSA to enforce the removal order as soon as possible. The member described Mr. Lunyamila’s non-cooperation as “completely contrary to what is required by Canadian law” (2016 FC 1199 at paragraph 109).\n\nThe other conditions that Member Cook imposed included cooperation with an interview with Tanzanian officials and with any additional CBSA investigation into his identity, acceptance prior to release in a residential drug and alcohol treatment facility and completion of its program, on completion of that program making efforts to enrol in a community-based violence prevention and anger management program and completing the program once enrolled, mandatory reporting to the CBSA, abstention from alcohol, and compliance with any physician-prescribed treatment program.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-13", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 33–36", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In his decision on judicial review, the application judge accepted the parties’ agreement that the appropriate standard of review was reasonableness. He considered the order made by Member Cook after having concluded that he would set aside as unreasonable the other four orders that were the subject of the consolidated applications. He determined that Member Cook’s order was also unreasonable.\n\nThe application judge framed the fundamental issue raised by the applications as “how to resolve the tension between […] an immigration detainee’s refusal to cooperate with a validly issued order for removal from Canada, and […] the length of detention and uncertainty regarding the duration of future detention that result, in whole or in part, from that refusal” (2016 FC 1199 at paragraph 1).\n\nHe expressed his resolution of this tension as follows at paragraph 2: where such a refusal has the result of impeding any steps that may realistically contribute in a meaningful way to effecting the removal of a detainee who has been designated to be a danger to the public, the tension must be resolved in favour of continued detention. The same is true where it has been determined that a detainee is unlikely to appear for removal from Canada.\n\nThe application judge reasoned that if it were otherwise, a detainee who was a danger or a flight risk could by the refusal to cooperate produce or contribute to producing a “stalemate,” resulting in release and the infliction on the public of the associated risk. This would allow detainees to “take the law into [their] own hands” (2016 FC 1199 at paragraph 4), in a manner that Parliament could not have intended.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-14", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 37–38", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In considering one of the other release orders that was the subject of the consolidated applications, the application judge addressed the suggestion made by the ID member who had granted the order that there was a conflict between two lines of cases in the Federal Court – one holding that indefinite detention cannot be treated as a determinative factor in a detention review and the other, that length of detention should be given substantial weight in the balancing process under section 248. He characterized these cases as consistent to the extent that they all properly saw it as necessary to consider and reasonably weigh all of the section 248 factors. But, he stated (at paragraph 85), “where the detainee is a danger to the public, the scheme of the IRPA and the Regulations contemplates that substantial weight should be given to maintaining the detainee in detention.”\n\nThe application judge went on in his discussion of the Federal Court case law to address a further tension identified by the member – that between cases in which the Court had set aside ID release decisions as unreasonable where the detainee’s non-cooperation was the sole cause of the indefinite nature of the detention, and those in which the Court had found unreasonableness in the failure of the member to consider factors other than the detainee’s non-cooperation. He stated (at paragraph 95) that, in his view, “the scheme of the IRPA and the Regulations […] requires resolving a stalemate that has been produced by the detainee’s failure to fully cooperate with the Minister’s removal efforts, in favour of continued detention.”", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-15", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 39–40", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The application judge found Member Cook’s decision unreasonable in several respects. First, there was an inconsistency between Member Cook’s conclusion that Mr. Lunyamila’s detention had become indefinite and the member’s own findings as to the prospects of removing Mr. Lunyamila to Rwanda or Tanzania. The member had also recognized that a large portion of the delay was attributable to Mr. Lunyamila’s refusal to cooperate, and that his non-cooperation had, in addition, contributed significantly to the uncertainty of the timing of removal. It was therefore unreasonable for the member to rely on delay and uncertainty to find that the detention had become indefinite, and then to treat these factors as favouring release: this amounted to giving Mr. Lunyamila credit for factors for which he had been largely responsible.\n\nThe application judge also found unreasonable the member’s decision to give a neutral weighting to the fourth section 248 factor, relating to delay and lack of diligence. He accepted that the Minister could have been more diligent in making efforts to remove Mr. Lunyamila to Rwanda, but observed that Mr. Lunyamila’s non-cooperation had substantially undermined those efforts. This factor should therefore, the application judge stated, have weighed strongly in favour of continued detention. The application judge found further unreasonableness in Member Cook’s determination that the Minister should have done more sooner to pursue the possibility of removal to Tanzania.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-16", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 41–42", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The application judge went on to consider the conditions of release set out by Member Cook. The application judge applauded Member Cook for including the pre-release condition that Mr. Lunyamila sign the declaration required by Rwanda. Permitting Mr. Lunyamila to obtain release while continuing to refuse to cooperate would, the application judge stated (at paragraph 119), be “tantamount to letting him take the law into his own hands, and dictate which laws of Canada he will follow and which ones he will not follow.” However, he agreed with the Minister that the conditions taken together were unreasonable because they did not adequately address Mr. Lunyamila’s violent tendencies and his flight risk. He stated (at paragraph 45) that to be reasonable in the circumstances of Mr. Lunyamila’s case, the conditions would have to “virtually eliminate” the risks that he presented.\n\nHaving concluded that the conditions of release taken as a whole were unreasonable, the application judge set aside Member Cook’s order, along with the other four orders that were subjects of the consolidated applications. Based on Member Cook’s recent familiarity with Mr. Lunyamila’s situation and his understanding of the statutory scheme and many of the relevant legal principles, the application judge remitted the matter back to Member Cook for reconsideration in accordance with his reasons.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-17", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 43–44", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Neither party proposed a question for certification under paragraph 74(d) of the IRPA. Both were of the view that the case was grounded in its particular facts and therefore presented no question of general importance. However, the application judge saw the differences of view in the Federal Court’s case law as giving rise to a question of general importance warranting this Court’s consideration. He therefore sought the parties’ comments on a question that he proposed. The parties maintained their position that the proposed question was not suitable for certification, because the appropriate balancing of the factors in section 248 will vary depending on the circumstances of each case. The application judge nonetheless certified the following question (at paragraph 137): Can a person who has been detained for removal from Canada pursuant to a valid removal order and who has been found either to be a danger to the public or unlikely to appear for his removal from Canada, avoid continued detention by (i) refusing to take steps that may realistically contribute in a meaningful way to effecting such removal, and then (ii) relying on the length of his detention to argue that his release from detention is warranted, assuming there has been no significant change in other factors to be considered in the assessment contemplated by s. 248 of the Immigration and Refugee Protection Regulations?\n\nBy paragraph 74(d) of the IRPA, this Court has jurisdiction to hear an appeal from the judgment of the Federal Court on an application for judicial review with respect to any matter under the Act only if, in rendering judgment, the Federal Court “certifies that a serious question of general importance is involved and states the question.”", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-18", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 45–46", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As this Court observed in Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at para. 23, this provision “fits within a larger scheme designed to ensure that a claimant’s right to seek the intervention of the courts is not invoked lightly, and that such intervention, when justified, is timely.” Other elements of the scheme include the requirement in section 72 of the IRPA to obtain leave before pursuing an application for judicial review in the Federal Court.\n\nThis Court recently reiterated in Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para. 36, the criteria for certification. The question must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance. This means that the question must have been dealt with by the Federal Court and must arise from the case itself rather than merely from the way in which the Federal Court disposed of the application. An issue that need not be decided cannot ground a properly certified question (Lai v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211 at para. 10). Nor will a question that is in the nature of a reference or whose answer turns on the unique facts of the case be properly certified (Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 485 N.R. 186 at paras. 15, 35).", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-19", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 47–48", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Despite these requirements, this Court has considered that it is not constrained by the precise language of the certified question, and may reformulate the question to capture the real legal issue presented (Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, 398 D.L.R. (4th) 685 at para. 5 per Rennie J.A. (dissenting, but not on this point); Ezokola v. Canada (Citizenship and Immigration), 2011 FCA 224, [2011] 3 F.C.R. 417 at paras. 40-44, reversed without comment on the point, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678). Any reformulated question must, of course, also meet the criteria for a properly certified question.\n\nAt the hearing of the appeal, the Court raised with counsel for both parties concerns about the certified question as framed (reproduced at paragraph 43 above). These included concerns that the question might be in the nature of a “straw person,” in that it would admit of only one reasonable answer. However, the Court also recognized that circumstances like those in this case might give rise to a serious legal issue of general importance, and proposed possible alternative formulations for comment. Counsel were content that the Court try to reformulate the question. The Court decided that it would proceed with the hearing on the merits, leaving the possible reformulation of the certified question to be considered further during the Court’s deliberations.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-20", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 49–50", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "With the benefit of further consideration, I find myself unable to conclude that the question as certified meets the criteria for certification, or that the question can be reformulated so as to address its deficiencies. The fundamental problem as I see it is that the question does not arise from the facts of this case as it developed. The question asks, in essence, whether an immigration detainee can avoid continued detention by failing to cooperate with removal. But Member Cook’s order did not permit Mr. Lunyamila to do so. Rather, Member Cook’s order expressly imposed as a pre-release condition the requirement that Mr. Lunyamila do what he has so far refused to do – sign the declaration requested by Rwanda.\n\nCounsel’s arguments before us were directed to the reasonableness of this order, including all of its conditions. Counsel for Mr. Lunyamila argued that the order as a whole struck a careful and factually supported balance, that the application judge showed insufficient deference in finding it unreasonable, and that it should not have been set aside. Counsel for the Minister submitted that the application judge was right to find the order unreasonable, but for reasons unrelated to the pre-release condition – a condition which, as noted above, the application judge said he applauded. In sum, therefore, neither party took issue with the pre-release condition of cooperation.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-21", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 51–52", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In light of my appreciation of the issue raised by the application judge’s formulation and counsel’s comments, I considered proposing that the certified question be reformulated along the following lines: In a review under section 57 of the Immigration and Refugee Protection Act of the detention of a person against whom a removal order has been made, is the Immigration Division of the Immigration and Refugee Board entitled to rely on the factors set out in paragraphs 248(b) and (c) of the Immigration and Refugee Protection Regulations (“the length of time in detention” and “whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time”) as factors favouring release where the length of time in detention and the length of time that detention is likely to continue are attributable in whole or in part to the failure of the detainee to cooperate in his or her removal from Canada?\n\nHowever, given the terms of Member Cook’s order and the positions of the parties, it would not be necessary to decide this question either in order to decide the appeal. The reformulation could also be regarded as deficient on the basis that it is a question whose answer would turn on the unique facts of each case – for example, on the nature and extent of the non-cooperation – or that it would transform this appeal into a reference. I therefore came to the view that reformulation would not be appropriate.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-22", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 53–54", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For these reasons, I conclude that the certified question is not sufficient to give this Court jurisdiction to decide the appeal, which must therefore be dismissed. I do not see “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an award of costs.\n\nI would dismiss the appeal without costs. “J.B. Laskin” J.A. “I agree. David Stratas J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-483607-1", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 1–3", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Enforcement of removal orders by the Canada Border Services Agency (CBSA) is an everyday occurrence in this country. In most cases, removal proceeds in an expeditious manner. But sometimes it does not. The person to be removed may not report. The receiving country may delay or refuse to issue the necessary travel documents. Sometimes the political situation in the receiving country is unstable, or removal carries an unacceptable risk of human rights violations. Significant delays can result, placing the person subject to removal in an administrative and legal limbo. The person has no right to remain in Canada but Canada has no ability to effect the removal.\n\nFor certain foreign nationals, there may also be reasonable grounds to believe that they pose a danger to the public or are a flight risk and may not report to the CBSA for removal. In such cases, the Immigration Division (ID) of the Immigration and Refugee Board of Canada may order their arrest and detention pending removal (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55 (IRPA)).\n\nOver the course of a year, over 5,000 persons, inadmissible to Canada for various reasons, are held in immigration detention, either in immigration holding centres operated by the CBSA or in provincial correctional institutions. The vast majority of detentions are of short or intermittent duration—far less than 100 days. But some detainees are held for much longer. The appellant, Alvin John Brown, is an example of the latter.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-2", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 4–6", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court has described the facts surrounding Mr. Brown’s stay in Canada and eventual removal (2017 FC 710, per Fothergill J. at paras. 9-18). He was found to be inadmissible to Canada on the basis of a series of criminal convictions. At the end of his term of imprisonment he was ordered detained pending removal because he was both a danger to the public and a flight risk. Notwithstanding the increasing length of Mr. Brown’s detention, at each of his subsequent detention reviews the ID ordered that he continue to be detained.\n\nMr. Brown was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the CBSA was unable to obtain a travel document for Mr. Brown from the Jamaican High Commission during this time.\n\nIn the Federal Court, Mr. Brown, together with the End Immigration Detention Network, a third party with public interest standing, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the IRPA and sections 244 to 248 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (Regulations). There, they contended that the regime violates sections 7, 9, 12 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.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-3", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 7–10", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although Mr. Brown had been removed from Canada by the time of the hearing, no one asserted the objection of mootness. Nevertheless, the Federal Court considered mootness and, after reviewing the jurisprudence, exercised its discretion to hear the application in the public interest. No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion.\n\nThe Federal Court dismissed the appellants’ Charter challenge. They now appeal to this Court on the basis of the following certified question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nOnce a question is certified, all issues that bear upon the disposition of the appeal are at large (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 12 (Baker); Mahjoub v. Canada (Minister of Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 37).\n\nIn this Court, the appellants renew their constitutional challenge. They are supported by two interveners: the Canadian Association of Refugee Lawyers and the Canadian Centre for International Justice. The interveners advocate for specific procedural protections for immigration detainees including mandatory release dates, early disclosure by the Minister of Public Safety of any evidence relevant to a detainee’s case, and the imposition of an onus on the Minister of Public Safety to establish, with strong supporting reasons, that continued detention is warranted.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-4", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 11–13", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Casting a shadow on the appellants’ constitutional challenge is the Supreme Court of Canada decision, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui). There, the Supreme Court prescribed the process and protections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of the Charter.\n\nThe Supreme Court’s conclusions in Charkaoui are set forth in paragraph 96: The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual […]\n\nElsewhere, at paragraph 105 of Charkaoui, the Supreme Court recognized that immigration detention may have to be or may practically end up being indeterminate: “[i]t is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.” It rejected the detainee’s argument that after 5 years his detention had become indefinite and, thus, unconstitutional for that reason.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-5", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 14–16", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court held that extended periods of detention under the IRPA do not violate the Charter if they are accompanied by regular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length of detention and the availability of alternatives to detention such as release on conditions (at paras. 110-117).\n\nBut the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant. In these circumstances, the Court concluded that, although prolonged detention under the regime established by the IRPA was constitutional, “[…] this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter” (at para. 123).\n\nCharkaoui stands in the way of the appellants’ argument that lengthy or indeterminate detention is per se unconstitutional. In response, the appellants launch a frontal attack on Charkaoui.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-6", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 17–19", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants contend that where removal is no longer reasonably foreseeable, release is the only constitutionally compliant outcome, and the failure of the IRPA to expressly require release “in these circumstances” renders the scheme constitutionally deficient. Analogizing to the principles expressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan) the appellants contend that their section 7 and 9 Charter rights can only be protected by judicially mandated limits on the length of detention or, alternatively, that the scheme should be declared unconstitutional under section 52. They say that Charkaoui must be read in light of the principles expressed in Jordan.\n\nThe appellants advance a second attack on the detention scheme. The appellants say the fact that the legislation grants a discretionary power that may be exercised in an unconstitutional manner renders the enabling provision unconstitutional. The appellants contend that for the detention provisions of the IRPA to pass constitutional muster, it must be impossible for the ID to order detention when there is no reasonable prospect of removal.\n\nThe appellants and interveners also argue that the detention scheme offends section 7 of the Charter because it places an onus on detainees to justify why they should be released. As well, the appellants and interveners challenge the constitutionality of detention orders under section 12 of the Charter because the ID has no control over the location and conditions of detention. They also raise a procedural fairness challenge based on the limited disclosure by the Minister during detention hearings.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-7", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 20–21", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The arguments challenging the detention scheme fail and so I would dismiss the appeal. However, as will be seen, ID members conducting detention reviews and judges sitting in judicial review, must consider Charter and administrative law standards. Although the appellants’ challenge to the validity of the sections fails, many of their arguments are vindicated by what is said in these reasons concerning what judges conducting detention reviews must consider.\n\nAll Charter analysis begins with an informed understanding of the legislation in question. The legislation must first be interpreted according to the accepted principles of statutory interpretation (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21). And in examining the effects of the legislation, as is necessary when applying the Charter, we must understand how it operates against the backdrop of accepted common law and administrative law principles (see, e.g., Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 at 1049; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at paras. 43-45; R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204 at para. 78; Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at 315).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-8", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 22–24", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7, 9 or 12 of the Charter. The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui to find that extended periods of detention under the IRPA’s security certificate detention scheme did not contravene sections 7 and 12 of the Charter. These hallmarks include robust and timely review of the continued need for detention, the ability to “consider terms and conditions that would neutralize the danger” and the “fashion[ing of] conditions that would neutralize the risk of danger upon release” together with power to order release if satisfied that the need for detention no longer exists (Charkaoui at paras. 117, 119-123).\n\nCharkaoui is also clear guidance from the Supreme Court, along with many other leading authorities, that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982.\n\nTwo opening observations are in order.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-9", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 25–26", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, this appeal involves nothing more than applying settled principles to specific legislation and a specific evidentiary record. There is no real dispute between the parties on the settled principles. Thus, I will not elaborate on either the general content of section 7 (see, e.g., Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, 69 Imm. L.R. (4th) 297 at paras. 76-90; Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, 438 D.L.R. (4th) 148 at paras. 78-87) or the two-stage process to be followed when applying section 7 (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 at para. 68 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at para. 58). It is sufficient to say that Mr. Brown’s Charter rights are engaged, and that as a foreign national in Canada he has standing to challenge this legislative scheme using sections 7, 9 and 12 of the Charter (Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 at 201-202; see also R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 at para. 23 (Appulonappa)). Nor is there any dispute over the scope and content of sections 7, 9 and 12.\n\nThe second observation relates to the Supreme Court decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381 (Chhina), rendered while this appeal was under reserve and on which the parties made additional written submissions. A comment is required on the relevance of Chhina to the issues in this appeal.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-10", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 27–29", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The constitutionality of the immigration detention scheme was not in issue before the Supreme Court in Chhina. The focus of that case was the availability of habeas corpus as an alternative remedy to judicial review to determine the legality of a detention order. The case did not require a full interpretation of the IRPA detention provisions and none was done. The questions raised here have not been answered. Nor did the Supreme Court in Chhina reverse or cast any doubt on Charkaoui, which directly applies to the question before this Court.\n\nUnder sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, a violation of human or international rights, serious criminality or organized criminality. Unless the removal order is stayed by the Federal Court, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (IRPA, s. 48(2)).\n\nUnder subsection 55(1), the ID may issue a warrant for the arrest and detention of a foreign national where there are reasonable grounds to believe they are inadmissible and pose a danger to the public or are a flight risk. No warrant is required for foreign nationals that are not protected persons, as defined under subsection 95(2) of the IRPA, and are a danger to the public or a flight risk, or whose identity cannot be confirmed (IRPA, s. 55(2)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-11", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 30", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Within 48 hours of arrest, or otherwise without delay, the ID is required to review the reasons for detention advanced by the Minister responsible for the CBSA, the Minister of Public Safety (IRPA, s. 57(1)). If the ID concludes that a detention order is appropriate, a second review must take place within the following seven days, and then again, if necessary, within every subsequent 30-day period (IRPA, s. 57(2)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-12", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 31", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsection 58(1) stipulates that grounds for detention may exist in five circumstances: Release — Immigration Division 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. Mise en liberté par la Section de l’immigration 58.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-13", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 31–32", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants : a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l’étranger est interdit de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour grande criminalité, criminalité ou criminalité organisée; d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un étranger désigné qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause — n’a pas été prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l’identité de l’étranger; e) le ministre estime que l’identité de l’étranger qui est un étranger désigné et qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause n’a pas été prouvée.\n\nThe language of Parliament in subsection 58(1) is clear and the context and purpose of section 58 does not change the plain meaning of that language. Under subsection 58(1), detention must cease unless the ID is satisfied, on a balance of probabilities, that a ground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-14", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 33", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "But detention does not simply follow on proof of a ground for detention. Section 248 of the Regulations makes this clear. Before a detention order is made, the ID must proceed to the second stage and examine whether detention is warranted based on certain prescribed factors (see also Sasha Baglay & Martin Jones, Refugee Law, 2nd ed. (Toronto, ON: Irwin Law, 2017) at 389). The prescribed factors are as follows: Other factors 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; (e) the existence of alternatives to detention; and (f) the best interests of a directly affected child who is under 18 years of age. Autres critères 248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère, de l’Agence des services frontaliers du Canada ou de l’intéressé; e) l’existence de solutions de rechange à la détention; f) l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-15", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 34–36", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "These factors were first articulated by Rothstein J., then of the Federal Court, in Sahin v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 214, 5 Imm. L.R. (3d) 159 (Fed. T.D.) at 231 (Sahin). They were subsequently given legislative expression in section 248 of the Regulations, which came into force in 2002 (S.O.R./2002-227).\n\nIn considering alternatives to detention, the ID may impose any conditions on the detainee that it considers necessary to mitigate the risks (IRPA, s. 58(3)). Either the Minister or the detainee may subsequently apply to vary these conditions on the basis that they are no longer necessary to ensure compliance.\n\nIf the ID orders detention, the detainee is remitted to the custody of the CBSA. The CBSA may decide to place the detainee in an Immigration Holding Centre (IHC), or transfer the detainee to provincial authorities to be housed in a provincial correctional institution. The ID has no control over the privileges a detainee has access to while detained. If a detainee is dissatisfied with the conditions of their detention, they can bring a judicial review application in the Federal Court, if housed in a federal institution, or, if in a provincial institution, in the provincial superior court using legislation such as the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-16", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 37–38", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is clear from this review that the immigration detention scheme has all of the protections mandated by Charkaoui to ensure that extended periods of detention do not violate sections 7, 9 and 12 of the Charter. Detention reviews are timely and frequent: subsection 57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court.\n\nThe Supreme Court has recently suggested in obiter in Chhina (at para. 60) that the factors under section 248 of the Regulation may be deficient or vague because they do not expressly require release if removal is not foreseeable. This obiter statement, made in passing, does not repeal the central holding of the Supreme Court in Charkaoui, namely that an ongoing detention does not automatically run afoul of the Charter. In Charkaoui, the section 248 factors formed the heart of the issue before the Court. It would be startling if some idle words in Chhina displaced the detailed, well-considered and necessary holding in Charkaoui, almost as if by a side-wind.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-17", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 39", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, the appellants say that the legislation does not go far enough. They note that the IRPA is constitutionally flawed in that does not expressly say that there can be no detention in the absence of a reasonably foreseeable prospect of removal and does not impose a maximum period of time during which a person can be detained. For the reasons that follow, these arguments fail.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-18", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 40", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "A statutory power, such as the power to detain in this case, can only be used for the purposes for which it was intended. This principle of administrative law stems from the requirement that all government action must be authorized by a grant of legal authority. Whether express or implied, the text of a statute, seen in light of its context and purpose, prescribes the limits of the legal authority of a decision-maker exercising discretionary power (Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters, 2019) at § 15:2241; Entertainment Software Assoc. v. Society Composers, 2020 FCA 100 at para. 88 (Entertainment Software Assoc.) and cases cited therein). The classic statement of this principle is found in Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Roncarelli) where Rand J. said (at 140): In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.[...][T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-19", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 41–42", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Citing Roncarelli, the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 observed (at para. 108) (Vavilov): […] while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply \"with the rationale and purview of the statutory scheme under which it is adopted\": Catalyst […]. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Ltd., 2010 FCA 193, [2011] 4 F.C.R. 203 (F.C.A.), at paras. 38-40.\n\nThe IRPA has many purposes and objectives, including ensuring the safety and security of Canadians and the promotion of international justice by denying safe harbour for criminals or those who pose a security risk (IRPA, paras. 3(1)(h), (i)). The power to detain, as set out in subsection 58(1), is one of the mechanisms by which those purposes are realized. That detention can only be ordered where it is linked, on the evidence, to one of the enumerated grounds listed in subsection 58(1) is an application of this principle. The power to detain must always remain tethered to the IRPA’s purposes and objectives.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-20", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 43–45", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The implicit requirement that the power to detain can only be exercised where it facilitates the purposes of the IRPA has guided the IRPA’s interpretation for decades. In Sahin at 226-229, Rothstein J. drew on R. v. Governor of Durham Prison, Ex parte Singh, [1984] 1 All E.R. 983, [1984] 1 W.L.R. 704 (Q.B.). There, in considering the immigration detention power provided by the Immigration Act, 1971, Woolf J. (as he then was) concluded that the Act was subject to two implicit limitations: the power to detain was limited to the purposes of removal and the responsible minister must move “with all reasonable expedition” to ensure removal.\n\nSection 58 of the IRPA authorizes detention for several purposes, including pending determination of identity, pending a determination of admissibility or on the grounds of public safety. The power of detention will be exercised principally, but not exclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention must always be tethered, on the evidence, to an enumerated statutory purpose. To conclude, the IRPA is not constitutionally deficient because it does not state expressly that which the law already requires.\n\nThis conclusion is not altered by the Charter.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-21", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 46–47", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Interwoven with the modern approach to the interpretation of legislation is the presumption that Parliament intends to enact legislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1078 (Slaight); R. v. Swain, [1991] 1 S.C.R. 933, 125 N.R. 1 at 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 at 660; R. v. Lucas, [1998] 1 S.C.R. 439, 157 D.L.R. (4th) 423 at para. 66).\n\nThe presumption of compliance is that “the legislature intends to make legislation that complies with the constitution, and to the extent possible legislation is therefore interpreted to achieve that result” [emphasis in original] (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis, 2014) 523, at § 16.3 (Sullivan on the Construction of Statutes)). This principle is engrained in Supreme Court of Canada jurisprudence dating back over half a century (see McKay et al. v. The Queen, [1965] S.C.R. 798, 53 D.L.R. (2d) 532 at 803-804). In R. v. Sharpe, 2001 SCC 2, [2001] S.C.R. 45 at para. 33, McLachlin C.J.C. confirmed the presumption’s application in situations where Charter rights are implicated. More recently, the Supreme Court has said that the detention provisions of the IRPA, the very legislation in question here, ought to be interpreted “harmoniously with the Charter values that shape the contours of its application” (Chhina at para. 128, Abella J., dissenting but not on this point).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-22", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 48–51", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, the appellants and interveners contend that the Supreme Court has changed the law in the relatively recent, post-Charkaoui decision of Jordan. They say that the Supreme Court has now recognized that in some situations maximum time limits must be imposed to ensure Charter compliance. Mr. Brown argues the appropriate maximum limit in detention is six months, while the End Immigration Detention Network argues that it is three months; after expiry of those limits, they say the detention is arbitrary and violates sections 7 and 9.\n\nJordan does not alter the constitutional holdings in Charkaoui. It is not authority for the proposition that sections 7 and 9 of the Charter require fixed limits on detention.\n\nIn Jordan, the Supreme Court established ceilings beyond which pre-trial delay becomes presumptively unreasonable under section 11(b) of the Charter. Beyond the ceiling, the burden shifts to the Crown to rebut the presumption of unreasonable delay based on exceptional circumstances. The ceiling was set at 18 months for offences tried in provincial court, and 30 months for those tried in the superior court or those tried in provincial court after a preliminary inquiry (Jordan at para. 105).\n\nThe objective of the guidelines established in Jordan was to protect the constitutional right to trial within a reasonable time under section 11(b) of the Charter. But the considerations which prompted the Court to establish those guidelines contrast markedly with those surrounding immigration detention. As I will explain, the differences between the criminal justice system and that of immigration detention could not be greater.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-23", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 52–53", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Together, the federal and provincial governments have complete control over almost every aspect of the criminal justice system and the variables that affect delay. The federal government has responsibility for substantive criminal law and criminal procedure via the Criminal Code, R.S.C. 1985, c. C-46. The construction of courtrooms, appointment of judges, staffing of provincial courts and prosecutors, and the resources available to police to organize disclosure are all within the legislative competence of either the federal or provincial governments.\n\nIn contrast, while removal is one of the objectives of detention, Canada does not have complete control over its realization. Removal may be frustrated by political turmoil in the receiving state. Removal may be delayed by a dearth of evidence as to identity (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Rooney, 2016 FC 1097, [2017] 2 F.C.R. 375). Travel documents must be obtained from a great number and diversity of countries, some of which may not be in a hurry to have a particular national returned. Each will have a different view of what constitutes a timely administrative response to requests for travel documents. Removal is dependent on the cooperation of the receiving state, which, for a myriad of reasons, may be reluctant to or incapable of issuing a travel document. Mr. Brown’s situation is a good example. In spite of various, often unanswered, entreaties on the part of the CBSA, it took the Jamaican government nearly five years to confirm Mr. Brown’s nationality and issue a travel document. With the document finally in hand, the CBSA deported Mr. Brown the next day.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-24", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 54–56", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants rely on international law and the law of foreign jurisdictions to argue that a textual reading of the IRPA pertaining to immigration detention is inconsistent with basic international norms.\n\nThere is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 53 (Hape)). “Where possible” is a key qualifier (Entertainment Software Assoc. at paras. 76-92). Absent contrary indication, legislative provisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape at para. 53; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 at para. 47; Sullivan on the Construction of Statutes at §18.6; see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paras. 82–87 and Entertainment Software Assoc. at paras. 89-90).\n\nTherefore, both Canada’s international treaty obligations and the principles underlying international law can play a role in the interpretation of Canadian laws. This is reinforced by paragraph 3(3)(f) of the IRPA, which directs that the Act “is to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory.”", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-25", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 57–58", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is, however, an important counterweight to these principles—the doctrine of Parliamentary supremacy. An unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 50; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449 at 1371; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 16; Hape at para. 54; and see generally the comprehensive discussion in Entertainment Software Assoc. at paras. 76-92).\n\nThere is no doubt as to the design, operation or effect of the detention provisions. The appellants have not identified ambiguities or duelling interpretations that would open the door to an interpretation most consistent with international law. Reduced to its essence, the appellants’ argument is simply that in some jurisdictions immigration detention is dealt with somewhat differently. Leaving section 1 of the Charter aside, in light of Parliament’s clear legislative choice as to the design of the immigration detention scheme, the practices or legislative frameworks of other jurisdictions are irrelevant.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-26", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 59–60", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In any event, as the Federal Court concluded, the Canadian immigration detention scheme is consistent with that of the United Kingdom. The UK legislation does not mandate fixed periods of maximum detention but, as in section 248 of the Regulations, articulates a number of discretionary considerations relevant to whether a detention order should issue. Turning to the European Union, while the EU Return Directive does set a maximum period of detention of 18 months, member states are not required to comply with this limit where third country nationals are denied entry at a country’s border or where, like Mr. Brown, they are being returned following inadmissibility rulings arising from criminal convictions. The Ontario Court of Appeal, in hearing Mr. Brown’s habeas corpus application, did not find his arguments grounded in international law to be persuasive (Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124 at paras. 37-38).\n\nThe immigration detention regime is constitutionally sound and does not infringe sections 7 or 9 of the Charter. No principle of statutory interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To require an express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read in a redundancy. The statute books of our land would read very differently if, to ensure constitutionality, they had to codify all the applicable common law and constitutional law principles that frame the interpretation and understanding of legislation.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-27", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 61–63", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants advance an alternate argument. They contend that the question to be answered is not whether the legislation can be applied in a constitutionally sound manner, but rather whether the ID is empowered by the legislation to violate the detainees’ Charter rights. Put otherwise, because the discretion in section 248 is not expressly subordinated to the obligation to release in the face of an unreasonably lengthy detention or a removal that is not reasonably foreseeable, the scheme is constitutionally defective. The appellants focus on the scope of the word “consider” and the fact that the duration of detention is but one factor to be considered in section 248 of the Regulations. They say that a constitutionally compliant statute is one under which unconstitutional over-holding is impossible.\n\nThis argument is inconsistent with established methodology of Charter analysis. As I will explain, the appellants’ argument invites this Court to do precisely what the Supreme Court has instructed us not to do since the inception of the Charter.\n\nThe first question a court must ask in any Charter challenge is whether the infringement arises from the provisions of the legislation or whether it arises from a discretion granted by the legislation.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-28", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 64", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "A statutory provision cannot be interpreted in a manner that grants discretion to infringe the Charter unless such infringement is mandated by Parliament. The comments of Lamer J. (as he then was) in Slaight are apposite (at 1078): […] As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [Emphasis added]", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-29", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 65–66", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "When a party attacks the validity of a legislative provision, the relevant inquiry is whether the law being attacked produces an unconstitutional effect. Where unconstitutional acts are committed under constitutional laws, the Supreme Court has noted that “[t]he acts of government agents acting under such regimes are not the necessary result or ‘effect’ of the law, but of the government agent’s applying a discretion conferred by the law in an unconstitutional manner. Thus, section 52(1) is not applicable. The appropriate remedy lies under s. 24(1)” (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 59-60 (Ferguson); see also Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 at 719-720, Lamer C.J.C.).\n\nLittle Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 (Little Sisters) is also instructive. In that case, the appellants argued that the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and Customs Tariff, R.S.C. 1985, c. 41 (3rd Supp.) infringed their section 2(b) and section 15 Charter rights. The argument focused in part on the unconstitutionality of the prohibition against obscenity, set out in the Criminal Code, R.S.C. 1985, c. C-46 when applied by customs officers, with Little Sisters arguing that a regulatory structure open to maladministration was unconstitutionally under-protective of their constitutional rights (at para. 71).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-30", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 67–70", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court held that there is no constitutional rule that requires Parliament to address, affirmatively, the customs treatment of constitutionally protected expressive material by legislation rather than by way of regulation, ministerial directive or even departmental practice. Parliament is entitled to proceed on the basis that its enactments “will be applied constitutionally” by the public service (at para. 71).\n\nThe Supreme Court found that the source of the problem lay with customs officials who had been acting outside of the constitutionally sound statutory framework by specifically targeting homosexual erotica in violation of section 15(1) of the Charter. Binnie J., writing for the majority of the Court, stated “[...] there is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation” (at para. 125).\n\nAs in the case before us, the appellants’ complaint in Little Sisters was about what Parliament did not enact, rather than what it did enact. For this reason, Binnie J. distinguished cases like R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 where the legislative scheme itself was held to be unworkable (Little Sisters at paras. 72, 128).\n\nThe appellants rely on Appulonappa for the proposition that the legislation at issue is defective because it does not preclude the possibility of unconstitutional over-holding.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-31", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 71–74", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Appulonappa the Supreme Court found that section 117 of the IRPA, which criminalized the smuggling of aliens into Canada, was unconstitutionally overbroad and contrary to section 7 insofar as it captured humanitarian efforts, mutual aid amongst asylum-seekers or individuals who assisted close family members. The Court found that subsection 117(4), which required that the Attorney General must consent for a prosecution to proceed under section 117, could not save the provision because it was not impossible that the Attorney General could consent to prosecution in a case that was overbroad of the legislative purpose (at paras. 74-77).\n\nAppulonappa does not stand for the proposition that constitutional compliance depends on the “impossibility” of an unconstitutional exercise of discretion.\n\nIn that case, the residual prosecutorial discretion of the Attorney General was advanced as an alternate argument to cure the admittedly overbroad and constitutionally infringing provision of the Criminal Code. Put otherwise, it was argued that the overbreadth of section 117 was remedied by the Attorney General’s discretion to choose not to prosecute. The Supreme Court rejected that argument. The standard of “impossibility” was premised on a finding that the charging provisions were, in and of themselves, infringing.\n\nHere, in contrast, the scheme is constitutional. Where there are regular detention reviews that give full and fair consideration to the non-exhaustive considerations in section 248, prolonged detention is constitutional. Rather than being a source of unconstitutionality, the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-32", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 75–77", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 433 D.L.R. (4th) 157 (Civil Liberties) the Ontario Court of Appeal considered a constitutional challenge to sections 31-37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The Court held that the provisions, which confer discretion on the administrative head of a federal penitentiary to order administrative segregation of inmates based on a number of factors, infringed section 12 of the Charter. The Court, in analyzing the scheme, considered whether the scheme itself was unconstitutional or whether it simply permitted unconstitutional maladministration.\n\nBefore the Court of Appeal, the Attorney General argued that the Act, properly interpreted, had safeguards that rendered it capable of constitutional compliance (Civil Liberties at para. 102). The applications judge had accepted this argument, and concluded that the legislative scheme, even though it permits prolonged segregation, would not “inevitably result in the treatment of an inmate which is grossly disproportionate to the safety risk the inmate presents” [emphasis added] (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491, 140 O.R. (3d) 342 at para. 269).\n\nThe Ontario Court of Appeal disagreed. It held, in part because the discretion granted under the Act only required the institutional head to “consider” the inmates’ health prior to making segregation decisions, that it was “not impossible” the legislation’s application could result in grossly disproportionate treatment (at paras. 105, 110, 113). Based on this and other factors, the Court found the legislation to infringe section 12.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-33", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 78–79", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "For the reasons I have given, I do not agree that the litmus test for constitutionality is that it must be impossible to exercise discretion in an unconstitutional manner. The word “consider”, if one follows the reasoning of the Ontario Court of Appeal, is not to be read in a manner that is consistent with the Charter. However, this is the opposite of what the Supreme Court, from Slaight, through to Ferguson and Little Sisters and beyond, has instructed. A statutory grant of discretionary power should be read to require that it be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in which case the statutory grant itself may be subject to Charter challenge (Slaight at 1078). In this case, the statutory grant of discretionary power uses the word “consider”, an open-ended grant of discretion. Far from precluding the decision maker from having regard to Charter standards when assessing the appropriateness of detention, it requires it.\n\nThe guidance arising from Slaight, Ferguson and Little Sisters directly applies to and disposes of the appellants’ argument that the legislation is defective because it does not expressly prohibit detention when removal is not reasonably foreseeable. There is no proposition of law that legislation, to pass constitutional muster, must exclude all possibility of unconstitutional exercises of discretion. If that were the case, the Supreme Court would have been mistaken in Charkaoui when it determined that the remedy for an immigration detention beyond a permissible length lay in section 24(1) (at para. 123).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-34", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 80–81", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Charter does not require that the possibility of maladministration pursuant to a statutory grant of discretion be eradicated from statutes. Rather, the Charter requires that discretion be guided by objective criteria that are capable of identification, articulation and judicial supervision. This is readily demonstrated by three analogous situations: section 24(2) of the Charter, pre-trial detention or bail provisions, and the provisions of the Criminal Code dealing with release pending appeal of a conviction. A comparative review of the broad discretion granted under these provisions demonstrates that the discretion to detain under section 58 of the IRPA and section 248 of the Regulations is constitutionally compliant.\n\nIn Mills v. The Queen, [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 (Mills), McIntyre J. commented on section 24(2) of the Charter and the authority of a court to grant any remedy which it considers “appropriate and just in the circumstances”, and concluded that it was “difficult to imagine language which could give the court a wider and less fettered discretion” (at 965). Nonetheless, section 24(2) was “an acceptable statutory standard to overcome vagueness” (R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (Ont. C.A.) at 115 (Farinacci)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-35", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 82–83", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The circumstance of bail pending appeal also illustrates the point that broad statutory language will not offend constitutional standards where it is capable of judicial definition. In Farinacci, the Ontario Court of Appeal considered the constitutionality of subsection 679(3) of the Criminal Code, which leaves to appellate courts to determine whether detention pending appeal is “necessary in the public interest.” Citing Mills, Arbour J.A. concluded that the discretion to balance the public interest and public safety was not vague or unfettered (at paras. 114-115).\n\nThe discretion conferred by the Criminal Code provisions in respect of initial show-cause hearings and bail review hearings also serves as a useful comparator against which the discretion granted under section 248 of the Regulations can be tested. These provisions confer a broader and vaguer discretion on the judge or justice of the peace at the initial show cause hearing than the detention provisions of the IRPA. They too have survived constitutional challenge.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-36", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 84–85", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "As under the IRPA, under subsection 515(1) of the Criminal Code release is the default outcome at the initial bail hearing (R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 at para. 1). Mirroring the language and structure of section 58 of the IRPA and section 248 of the Regulations, subsection 515(1) states that the accused shall be released unless the prosecutor can show cause why the accused should be detained or released under conditions. Some of the grounds under which a justice may deny bail mirror the grounds for detention under the IRPA scheme. In order for a justice of the peace or a judge to order pre-trial detention, the Crown must establish that there is a flight risk or that detention is necessary for the protection or safety of the public (Criminal Code, s. 515(10)(a) and (b)).\n\nOther grounds bear no resemblance. In contrast to the immigration detention regime, paragraph 515(10)(c) of the Criminal Code grants a right to detain if the judge is of the view that “detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances” surrounding the offence. The exercise of that discretion is informed by a number of statutory criteria, but no instruction is given as to how these criteria are to be weighed or how they relate to the grounds of detention (see, e.g., R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (St. Cloud)). These are the same criticisms that the appellants make of the immigration detention regime.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-37", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 86–87", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In respect of certain offences, there is a reverse onus at the initial show cause hearing on the accused to demonstrate that they should be released. The reversal of onus is constitutional (R. v. Morales, [1992] 3 S.C.R. 711, 144 N.R. 176). In contrast, there are no reverse onus provisions under the IRPA and the onus is always on the Minister to justify detention at each and every detention review.\n\nBail reviews under sections 520 and 521 of the Criminal Code are distinguishable from the current case. They are not de novo hearings and a detention or release order is only set aside where admissible new evidence shows a material or relevant change in circumstances, where there has been an error of law or where the decision is clearly inappropriate (St. Cloud at paras. 6, 94, 110, 120-121, 139). In the last of these situations, “a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision” (St. Cloud at para. 6). In sharp contrast to bail review, and as will be discussed, each and every immigration detention review is a fresh, de novo determination of whether detention is warranted.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-38", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 88–90", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Whether to order the pre-trial release of an accused involves a delicate balancing of all of the relevant circumstances (St. Cloud at para. 6). The same is true for whether to order detention pending deportation. As McLachlin C.J.C. noted in Charkaoui, the section 248 criteria—rather than being a source of some deficiency—are the guarantors of constitutional compliance (at paras. 110-117). The section 248 factors are “prescribed” factors which “must” be taken into account and ensure that extended periods of detention do not violate the Charter (paras. 109-123). The discretion the factors confer is precisely what ensures sensitivity to the context and circumstances of the individual case—a requirement under Charkaoui for constitutional prolonged detention (at para. 107).\n\nWhat are the defining characteristics of a detention review that complies with the Charter and administrative law? This engages substantive legal questions concerning the need for a nexus to an immigration purpose, compliance with sections 7, 9 and 12 of the Charter, the burden of proof, the relevance of previous detention decisions, and the content of procedural fairness.\n\nThe factors in section 248 of the Regulation, as law, must be followed. But on top of that, in order for continued detention to be legal under IRPA, there must be a nexus between detention and an immigration purpose. If that is missing, detention under IRPA is no longer possible.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-39", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 91–93", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Once again, the Supreme Court has already gone some way towards giving us guidance on this. Detention in this context is available only where it is reasonably necessary for immigration purposes: Charkaoui at para. 124, citing R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.) and Zadvydas v. Davis, 533 U.S. 678 (2001). Absent a “possibility of deportation”, detention in this context is no longer possible: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56.\n\nIn assessing the presence of an immigration nexus, Charkaoui tells us that detention may be lengthy and it may be indeterminate. Charkaoui instructs that length itself is not the only relevant metric, nor is the fact that the date of removal is unknown; indeed, if the date of removal were known, it is doubtful that the parties would be before the court. When examining the constitutionality of indeterminate detention the question is whether removal, and not the precise date on which removal will occur, remains a possibility: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department.\n\nThe appellants contend that the test for a nexus to an immigration purpose is whether removal is reasonably foreseeable. I do not agree that this is the test. There are problems in this, not the least of which is that it is not the test established by the Supreme Court of Canada, which is that removal be a possibility (Charkaoui at 125-127). As noted, if Charkaoui is read properly, detention is warranted where it is “reasonably necessary” and removal “a possibility.” The Court makes no mention of a test of foreseeability.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-40", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 94–95", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Reasonable foreseeability, on its own, offers no clear guidance to the factors, considerations or evidentiary thresholds relevant to its application. It raises the questions “foreseeable by whom?” and “reasonable according to whom?” and, perhaps for these reasons, as the habeas cases which have adopted the test demonstrate, it leads to inconsistent results. The rule of law mandates, and the jurisprudence on bail demonstrates, that in matters where liberty interests are engaged, discretion should, to the extent possible, be exercised on clear and discernable criteria, as consistently as possible. “Reasonable foreseeability” does not do this. It also invites the unhelpful exercise of assessing what is “reasonable” in the context of countries with legal, political and structures of public administration vastly different than ours and with which judges have no experience.\n\nThe focus of the “possibility” test is, to the contrary, on the existence of objective, credible facts. The decision maker must be satisfied, on the evidence, that removal is a possibility. The possibility must be realistic, not fanciful, and not based on speculation, assumption or conjecture. It must be grounded in the evidence, not supposition, and the evidence must be detailed and case-specific enough to be credible. In my view, as far as a nexus to an immigration purpose is concerned, despite the different wording, there is a general congruence between the detention review and habeas tests.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-41", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 96–98", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The foregoing concerns only the starting requirement that there be a nexus to an immigration purpose, in other words whether continued detention can be ordered. But just because it can be ordered does not mean it should. It is at a second stage, namely whether detention should be ordered, that proximity or remoteness of a removal date is engaged. The length of the detention to date and the conditions of the detention are also relevant to that question, i.e., the judge’s discretion, informed by the Charter, as to whether continued detention should be ordered. There may be circumstances where a detention, by virtue of its duration or the conditions of detention affects the liberty interest of the detainee so significantly that the Charter rights of the detainee are offended and release is warranted. We leave definitive consideration of this for a future day on the specific facts of a live case.\n\nI offer a few further comments to guide that consideration.\n\nWhile duration of the detention matters, duration alone is instructive of nothing, and, as several habeas corpus cases that follow Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401 (Chaudhary)) demonstrate, a narrow focus on duration leads to a range of subjective and inconsistent decisions (see, e.g., Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; Canada (Minister of Citizenship and Immigration) v. Dadzie, 2016 ONSC 6045, [2016] O.J. No. 5185; Scotland v. Canada (Attorney General), 2017 ONSC 4850, 52 Imm. L.R. (4th) 188; Ali v. Canada (Attorney General), 2017 ONSC 2660, 26 Admin. L.R. (6th) 78).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-42", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 99–101", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Detention cannot be ordered on the basis of non-cooperation alone—to do so would be contrary to sections 7 and 9. But where the impasse in effecting removal is disputed identity and the detainee has refused to cooperate in confirming their identity, delays in removal cannot count against the Minister. Release in these circumstances would encourage detainees to be less than forthcoming. Where a detainee is uncooperative, detention cannot be classified as indefinite because it is within the detainee’s control to change their destiny. That said, there will be cases where the receiving country alone disputes identity. Care must be taken not to attribute this to the detainee, who should not bear the burden of the country’s recalcitrance to confirm identity.\n\nThe presence of good faith is necessary. In assessing the Ministers’ efforts to effect removal, attention should be paid to all steps taken or that could reasonably be taken to procure the necessary travel documents, and whether the CBSA has actively used the time between periods of detention and release to advance the detainee’s removal.\n\nAs the facts of this case amply demonstrate, Canada’s efforts at removal may be frustrated by the receiving country. Even if a detainee consents to removal, removal depends on the receiving country issuing the necessary travel documents.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-43", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 102–105", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The conduct of the receiving country may explain the delay. Canada has the tools necessary to obtain cooperation, whether through escalating levels of diplomatic and political pressure, negotiated bilateral return agreements or placing visa or other entry requirements on nationals from the delinquent country. The question in these circumstances, where there is an impasse, is whether there is a proposed demarche or next step that is likely to advance the process. In other words, does the Minister have a plan to circumvent the impasse and is there a real possibility that it will lead to removal?\n\nThe variable conditions of detention (in a maximum security facility instead of an IHC) are not pertinent to whether detention is necessary to achieve removal. The conditions of detention are relevant to the legality of detention and the consideration of proportionality, whether under section 12 of the Charter or under judicial review.\n\nThe appellants maintain that because the ID lacks jurisdiction to control the conditions of detention when the detainees are in provincial institutions, the ID cannot ensure proportionality between detention and the reasons for detention. Detention is therefore arbitrary and results in cruel and unusual punishment. In the same vein, the appellants contend that the absence of an explicit power of the ID to consider “harsh or illegal” conditions of detention undermines the regime’s constitutionality.\n\nThis argument fails, both on the law and the evidence.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-44", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 106–107", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is a duty on ID members to exercise their discretion in a manner consistent with the Charter (Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 at para. 14 (Thanabalasingham); Sahin at 228-229). As Abella J. observed in Chhina, “[t]he Charter both guides the exercise of discretionary administrative decision making under [the] IRPA and informs our interpretation of the scheme itself” (at para. 128).\n\nAn express power for the ID to consider the nature or conditions of detention is not required (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 78). The ability, indeed obligation, to consider sections 7, 9 and 12 is inherent in the exercise of the discretion concerning whether or not detention is warranted. As a tribunal of competent jurisdiction capable of providing Charter remedies, the ID can order release of a detainee on the grounds that the conditions of detention, on their own or in conjunction with other factors, are disproportionate (Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240 at para. 29; Chaudhary at para. 77).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-45", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 108–109", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "As the Supreme Court has explained, a section 12 issue of “cruel and unusual” treatment is intertwined with section 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty (Charkaoui at para. 96). But, as the Court in Charkaoui noted, it is not the detention itself, or its length, that is objectionable; detention is only cruel and unusual in the legal sense if it violates “accepted norms of treatment” (para. 96). As such, denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrary and support the argument that it is cruel or unusual, but a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual (Charkaoui at para. 96).\n\nContrary to the appellants’ argument, Charkaoui does not stand for the proposition that the body reviewing detention must have control over the location and conditions of detention. To be clear, the Supreme Court said that, for an immigration detention scheme to be compliant with sections 7 and 12 of the Charter, it must provide a mechanism for review of detention that permits the reviewing body to set conditions that would neutralize the risk upon release, and that conditions of release must be subject to ongoing, regular review (Charkaoui at paras. 107, 117, 121). The Supreme Court’s focus in Charkaoui is on jurisdiction to impose conditions of release and on the detainee’s opportunity to challenge those conditions, not on the place and conditions of detention.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-46", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 110–111", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 (Boudreault), the Supreme Court reiterated that demonstrating a breach of section 12 is a high bar: the treatment or punishment must be more than merely disproportionate or excessive—it must be so excessive as to “outrage standards of decency” and be “abhorrent or intolerable” to society (at para. 45; see also R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 at para. 24). It is only in very rare and unique occasions that a treatment or punishment will infringe section 12, as the test is “very properly stringent and demanding” (Boudreault at para. 45; see also R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 at para. 26; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, 121 N.R. 198 at 1417).\n\nAgainst this jurisprudential backdrop, including Charkaoui, many of the appellants’ arguments regarding the conditions of detention were dismissed by the Federal Court. No reviewable error in that finding has been demonstrated. The evidence of conditions of detention falls far short of the threshold of cruel and unusual punishment set by the Supreme Court, and does not support the broad declaration sought by the appellants.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-47", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 112–113", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants rely on the Ontario Court of Appeal decision P.S. v. Ontario, 2014 ONCA 900, 379 D.L.R. (4th) 191 (P.S.). In P.S., the Court found that non-punitive detention under the Mental Health Act, R.S.O. 1990, c. M-7 did not comply with section 7 of the Charter because the Consent and Capacity Board’s powers were inadequate. The review board lacked the jurisdiction to supervise the security level and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests (P.S. at para. 115). The objective of reintegrating patients into the community was frustrated by the fact that the Board could not direct that certain types of treatment or therapies be made available to the detainees. The purpose of detention was to facilitate re-integration and, without those tools, detention was not linked to the legislative objective.\n\nUnder the IRPA, inadmissible foreign nationals are detained in order to ensure that they do not flee or harm the public before they are deported from the country. The purpose of detention is to facilitate public safety and removal. Unlike the Consent and Capacity Board, the ID has all the tools necessary to effect these objectives and, importantly, the jurisdiction to impose conditions on release, which reflects an appropriate balance between the objectives of the Act and the detainees’ liberty interest. The problem in P.S. was that the legislative tools granted to the Board were insufficient in relation to its objectives. Here, in contrast, it is argued that the powers of the ID are overbroad in relation to the objective. The case is of no assistance.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-48", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 114–117", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "More relevant is the Ontario Court of Appeal decision in Toure v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 681, 40 Admin. L.R. (6th) 261 (Toure).\n\nIn Toure, the Ontario Court of Appeal took no issue with the CBSA criteria that govern the location of detention, and held that the location of detention was a proper issue for immigration detainees to raise with the CBSA (at para. 72). If the location of detention is not consistent with how a detainee fits within the CBSA's own criteria, the decision is the proper subject of judicial review in the Federal Court (at para. 72). I agree with these observations.\n\nThe CBSA’s decision to stream a detainee into a provincial institution as opposed to an IHC is a reviewable decision or order under section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7. Similarly, a detention order that does not take into account the proportionality of the risk and the conditions of detention, can be tested in the Federal Court, on both Charter and administrative law principles. A decision that fails to consider the proportionality between the risk and the measures to mitigate that risk will be set aside, as will a decision that reached an unreasonable conclusion in that regard.\n\nIn any event, as the Federal Court noted, both the federal and Ontario statutes governing the detention of persons in correctional facilities state that any designation of a particular penitentiary in a warrant of committal is of no force or effect (Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 11; Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 17; see Federal Court reasons at para. 136). Neither the appellants nor the interveners point to authorities which deem those provisions to be unconstitutional.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-49", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 118–120", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The detention review scheme established by Parliament imposes a continuing and overarching legal burden on the Minister to establish that detention is lawfully justified according to section 58 of the IRPA, section 248 of the Regulations, and the Charter. The Minister bears the legal burden of establishing, on a balance of probabilities, that there are grounds for detention. If the Minister succeeds in that, the legal burden remains on the Minister to establish, in light of the section 248 criteria, that detention is warranted. This burden rests on the Minister throughout the detention review and re-surfaces every 30 days.\n\nThere are only two burdens in Canadian law: the legal or persuasive burden, sometimes called the onus of proof, and the evidentiary burden.\n\nWhile the terms legal and persuasive burden are interchangeable, “legal burden” is arguably more apt a term than “persuasive burden” because it emphasises the obligation on the asserting party, the plaintiff or the Crown, to establish the requisite substantive factual elements of a cause of action or offence (R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 10-12). Those facts must be established on a balance of probabilities in a civil matter and beyond a reasonable doubt in a criminal proceeding (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 40-41; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para. 94). Importantly, barring a statutory or common law rule, the legal burdens associated with a party never shift (Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman, & Bryant’s The Law of Evidence in Canada, 5th ed. (Toronto, ON: Lexis Nexis, 2018) at § 3.46 (The Law of Evidence in Canada)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-50", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 121–122", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "If the evidence establishes a ground for detention under the Act and suggests that detention is justified under section 248 of the Regulations, it may be in a detainee’s interest to introduce evidence in favour of release. This is not a shifting of the legal burden. It is, rather, descriptive of the tactical decision whether to lead evidence to prevent a potentially unfavourable outcome (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193 at para. 53; The Law of Evidence in Canada at 116, § 3.56; Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289 at 329-330; see also R v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 50). The appellants are right to point to some passages in Federal Court detention reviews that do not respect the difference. The distinction is important, as is the language used. The two ought not be confused.\n\nThe legal burden does not shift or change should the Minister establish a prima facie case of grounds for detention. The detainee is not required in law to do anything. Establishing grounds for detention does not mean that a detention order should issue. It simply means that there is a basis to consider making a detention order. Even when no evidence is offered by the detainee in response, the legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the section 248 factors. A detainee’s decision to introduce evidence in response is entirely tactical.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-51", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 123–124", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nor does the legal burden on the Minister change with successive detention reviews. Whether it is the first or the tenth detention review, the Minister must establish on a balance of probabilities that a ground for detention exists, the existence of a nexus to an immigration purpose and the appropriateness of the detention. What may often change with the passage of time is the quantity and quality of evidence required to justify detention. The longer the period of detention, the more time and opportunity the government has had to make the necessary arrangements with the receiving country and to execute removal. With the passage of time, the assertion that removal remains possible requires a more probing inquiry. Reflecting this reality, in Charkaoui, the Supreme Court stated that the burden on the Minister becomes heavier over time (at para. 113); I take the Supreme Court to have been speaking of an evidentiary or tactical burden here, not a persuasive burden.\n\nThe Supreme Court observed in Mission Institute v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at paragraph 40 (Khela) that the shift in onus from the prisoner to the detaining authority is unique to the writ of habeas corpus. But there is no reason why a statutory detention regime cannot achieve the same effect as habeas corpus. Parliament has crafted such a regime here.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-52", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 125–127", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Indeed, the scheme in the IRPA offers procedural and substantive advantages over a habeas corpus application. Properly interpreted, the IRPA requires the Minister to establish afresh the justification for detention every thirty days. The detention review occurs without any action on the part of the detainee, and for the entirety of the inquiry the burden is on the Minister to justify detention. The detainee is not required to do anything, procedurally or substantively. This can be contrasted to an application for habeas corpus where the applicant must initiate the application, establish that they have been deprived of liberty and that there is a legitimate ground to question their detention before the onus shifts to the responding authorities to show that the deprivation was lawful (Khela at para. 30).\n\nThere remain the observations of the Supreme Court in Chhina that the burden on the Minister decreases with time and that the requirement not to depart from prior decisions without clear and compelling reasons leads to self-referential reasoning and, in effect, shifts the onus to the detainee.\n\nChhina must be understood in light of the principles articulated by the Supreme Court in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry). Henry instructs that reasons move along a spectrum—from the ratio, which is binding, to guidance that, although not strictly binding, is expected to be followed, to commentary (at para. 57). The Court’s comments in Chhina on Thanabalasingham fall within the last-mentioned category.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-53", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 128–130", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thanabalasingham does not stand for the proposition that the burden shifts to the detainee. To the contrary, in Thanabalasingham, this Court held precisely the opposite: that “[t]he onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention” (at para. 16). Similarly, contrary to what the Court said in Chhina, in Charkaoui the Supreme Court held that the burden and evidentiary challenges on the Minister increase with the passage of time.\n\nThe Court in Chhina did not conduct a statutory interpretation exercise of the detention provisions in the IRPA, examine Thanabalasingham in depth or reconsider Charkaoui. For these reasons, the observations in Chhina, above, should not be regarded as binding upon us.\n\nThe appellants argue that the scheme is unconstitutional because the collective weight of past decisions to detain creates a strong incentive to defer to those decisions and maintain detention. Once detained, always detained. The appellants say that this flows from the jurisprudence, which requires an ID member to provide “clear and compelling reasons” if they wish to depart from a prior detention decision (Thanabalasingham at para. 10) and the recent observations of the majority of the Supreme Court in Chhina that the ID’s periodic reviews are susceptible to “self-referential” reasoning (see also Chaudhary at paras. 85-88).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-54", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 131–132", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "If this were a consequence of either the statutory scheme or the effect of Thanabalasingham, these arguments would have substance. But they have no foundation, either in the statutory scheme or in the jurisprudence. I have already explained how nothing in the IRPA or the Regulations places an obligation on a detainee to lead fresh evidence between detention reviews in order for the ID to reach a different result. Nothing in the IRPA requires the detainee to demonstrate a change in circumstances, and neither does the jurisprudence.\n\nIn Thanabalasingham, Rothstein J. expressly and unequivocally rejected the argument that the findings of previous members “should not be interfered with in the absence of new evidence” and held that “at each hearing, the Member must decide afresh whether continued detention is warranted” (at paras. 7-8). Guidelines issued on April 1, 2019, by the Chair of the Immigration and Refugee Board pursuant to paragraph 159(1)(h) of the IRPA reinforce this point and align with the instructions of the Federal Court to the ID in Canada (Public Safety and Emergency Preparedness) v. Hamdan, 2019 FC 1129 (Hamdan) (see Immigration and Refugee Board of Canada, Chairperson Guideline 2: Detention (Ottawa: Immigration and Refugee Board of Canada, April 1, 2019)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-55", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 133", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Members of the ID are obligated, under their oath and by law, to consider the circumstances of the particular individual whose detention or liberty is in issue in a fair and open-minded way. Each member is required to undertake their own independent assessment of the case for and the case against detention. Abella J. returns to this point in Chhina, noting that “[t]he integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing” (at para. 127). Abella J.’s dissenting reasons, which were not contradicted by the majority on the point mentioned here, were foreshadowed in Federal Court jurisprudence (see, e.g., Sahin at 228-230; Thanabalasingham at para. 14).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-56", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 134", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thanabalasingham creates no special rule for ID reviews. The requirement to give reasons when departing from a prior decision is directed to the well-understood requirement, essential to the integrity of administrative and judicial decision making, that if there is a material change in circumstances or a re-evaluation of credibility, the ID is required to explain what has changed and why the previous decision is no longer pertinent. This reinforces the values of transparency, accountability and consistency. As was explained by the Supreme Court of Canada in Vavilov, the primary purpose of reasons is to demonstrate justification, transparency and intelligibility (at para. 81). To promote “general consistency”, any administrative body that departs from its own past decisions typically “bears the justificatory burden of explaining that departure in its reasons” (at paras. 129-131). Moreover, reasons are the primary mechanism by which affected parties and reviewing courts are able to understand the basis for a decision (at para. 81; see also Canada (Public Safety and Emergency Preparedness) v. Berisha, 2012 FC 1100, [2014] 1 F.C.R. 574 at para. 52).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-57", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 135", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "I note, parenthetically, that the role of reasons when making a decision to depart from a previous decision is no different if habeas corpus is sought. The requirement for clear and compelling reasons does not change with the forum. As Professor Paul Daly observed in his commentary on Chhina, where a habeas corpus application is unsuccessful, a detainee may re-apply, and apply again after that. The provincial superior court hearing the habeas corpus application will be faced with the same challenges as the ID in justifying its decision; the same danger of self-referential reasoning remains, one way or another. In part for this reason, the Supreme Court’s solution to the problem in Chhina has been criticized (see, e.g., Paul Daly, “To Have the Point: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29” (5 June 2019) online (blog): Administrative Law Matters ). As Professor Daly notes, the solution to the self-referential reasoning lies not in offering detainees a different procedure for the assessment of the legality of detention, but rather, as Abella J. stressed in her dissent in Chhina, ensuring that at each detention review detainees’ Charter rights remain front and centre.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-58", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 136–137", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).\n\nAlthough the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings “will merit greater vigilance by the courts” (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-59", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 138–139", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.\n\nThe Immigration Division Rules, S.O.R./2002-229 provide in section 26 that documents the parties intend to rely on must be provided in advance: 26. If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division. The copies must be received: (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and (b) in all other cases, at least five days before the hearing. 26. Pour utiliser un document à l’audience, la partie en transmet une copie à l’autre partie et à la Section. Les copies doivent être reçues : a) dans le cas du contrôle des quarante-huit heures ou du contrôle des sept jours, ou d’une enquête tenue au moment d’un tel contrôle, le plus tôt possible; b) dans les autres cas, au moins cinq jours avant l’audience.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-60", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 140–141", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The interveners assert that detainees do not receive sufficient and timely disclosure to allow them to know the case they have to meet and to respond. They argue that the Immigration Division Rules fall short of what fairness requires because they, and the relevant policy guidelines, require disclosure of only the documents on which the Minister intends to rely. They also point to evidence that says that the disclosure that is made is often late and leaves counsel with no ability to adequately represent the detainee’s interests.\n\nThe existence of a legislated disclosure requirement does not dispose of the question whether procedural fairness has been met. The Court must still examine whether the duty of fairness has been fulfilled. The Federal Court observed that Mr. Brown raised “legitimate concerns about the timeliness and quality of pre-hearing disclosure” (Federal Court reasons at para. 127). I agree that those concerns are substantiated by the evidence. Mr. Singh, a hearings officer with the CBSA, admits that, although disclosure is to be provided in advance, “there are times where it is not provided in advance” (Federal Court reasons at para. 110).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-61", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 142–144", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee. This includes information pertaining to the grounds for the detention, information pertaining to the section 248 criteria, the existence of an immigration nexus, and the factors that bear upon the judge’s assessment whether continued detention is warranted and consistent with Charter and administrative law principles. While the disclosure obligation necessarily encompasses information that is helpful to the detainee, it is not unlimited. It is always tempered by the requirement that the information be relevant to the circumstances of the particular detainee.\n\nSection 26 of the Immigration Division Rules, even if followed, does not fulfill the minimum requirements of the common law duty of fairness. This is because the requirement to introduce evidence arises only where information provided is contradicted by another party (Canada, Citizenship and Immigration Canada, ENF 3: Admissibility, Hearings and Detention Review Proceedings, (Ottawa: April 29, 2015) at 34 (ENF 3)).\n\nENF 3 states that “[i]f the hearings officer recommends continued detention, the hearings officer should submit all available evidence to the ID in support of continued detention” (at 38). This falls short of what procedural fairness requires. Procedural fairness requires that the detainee have advance disclosure of all evidence relevant to the section 248 criteria, regardless of whether the Minister relies on it to support continued detention.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-62", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 145", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The legality of a detention order pending removal is underpinned by a finding, on the evidence, that removal remains a possibility. For this reason, disclosure of evidence concerning the likelihood of removal is also central to the legality of a detention order. This in turn requires the ID to assess the Minister’s efforts respecting removal and the reasons for delay at each and every hearing. Detainees are entitled to know what evidence the Minister relies upon for an argument that removal remains a possibility. Subject to recognized public interest privileges arising under section 38.01 of the Canada Evidence Act, R.S.C. 1985, c. C-5, relevant evidence of communications with a receiving country ought to be disclosed in advance of the hearing. Given the obligation imposed by section 248 of the Regulations, it would be a rare case where a member could properly exercise their discretion to continue detention in the absence of this evidence.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-63", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 146–147", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The common law obligation on the Minister to disclose—subject to public interest privileges—all pertinent documents is also consistent with Canada’s international law obligations. The United Nations High Commissioner for Refugees’ Detention Guide emphasizes that a “minimum procedural protection” for detainees is that an immigration detainee’s lawyer “have access […] to records held on their client” (United Nations High Commissioner for Refugees, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012 at para. 47(ii)). The United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, 4 May 2015, WGAD/CRP.1/2015 (UN Basic Principles and Guidelines) requires that disclosure include information that could assist the detainee, and that it be provided to the detainee “without delay so as to provide adequate time to prepare the challenge” (UN Basic Principles and Guidelines, Guideline 5 at 14, and Guideline 13 at 17-18). The common law requires the same protections.\n\nThe interveners point to the Federal Court’s recent decision, Allen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 486 (Allen), as demonstrative of how the regime lacks procedural protections. In Allen, the Federal Court found that the duty of fairness did not require disclosure of the CBSA’s communications with Jamaica, even though they had been specifically requested by the detainee. The Federal Court’s decision turned in part on the fact that the detainee had been uncooperative (Allen at para. 62).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-64", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 148–149", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The cooperation of a detainee is a relevant consideration for the ID in determining alternatives to detention, the cause of delay in removal and the assessment of the reasonableness of the Minister’s efforts to effect removal. Lack of cooperation, however, is irrelevant when it comes to deciding which procedural protections are afforded to a detainee by the duty of fairness. To the extent that Allen stands for the proposition that lack of cooperation vitiates the Minister’s disclosure obligations, it should not be followed.\n\nThe lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under section 248. In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure (see section 18.2 of the Federal Courts Act). Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents which results in a breach of procedural fairness.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-65", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 150–153", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "As I have noted, the conclusion of the majority of the Supreme Court in Chhina that recourse to habeas corpus should be allowed does not flow from any conclusion regarding the constitutionality of the IRPA. The issue before the Supreme Court was whether habeas corpus was available as an alternative remedy to detention reviews and judicial review. The focus of this case, in contrast, is the constitutionality of the scheme that governs detention and review before the ID. Nonetheless, given the importance of judicial oversight to ensuring the lawful integrity of ID decisions, and considering the submissions received from the parties subsequent to the release of Chhina while this case was under reserve, certain observations are in order.\n\nThe first observation is that whether viewed from a procedural or substantive perspective, judicial review provides a remedy that is fully responsive to the seriousness of the issues under consideration. I will deal with the substantive considerations first.\n\nA majority of Supreme Court in Chhina finds that the ID “does not conduct a fresh review of each periodic detention” and “as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus” (at para. 64).\n\nTo the contrary, the ID must look at the detainee’s entire detention history. The Regulations themselves require no less. Three of the five criteria in section 248 require the ID to have regard to the length of time in detention, which mandates a consideration of the entire history. The detainee’s entire detention history necessarily forms part of the evidence before the ID, as it will before the Federal Court.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-66", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 154–156", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Neither the ID, nor the Federal Court assesses the legitimacy of detention blinded to the overall history of detention. Each 30-day detention review requires consideration of the detention as a whole. Indeed, a cursory review of ID and Federal Court decisions demonstrates this to be the case (see, e.g., Canada (Citizenship and Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433 at paras. 66-67; Hamdan at paras. 29-30; Canada (Public Safety and Emergency Preparedness) v. Arook, 2019 FC 1130; Canada (Public Safety and Emergency Preparedness) v. Taino, 2020 FC 427; and the Federal Courts Rules, S.O.R./98-106, r. 306-309, r. 317).\n\nWhere the legislation prescribes a set of considerations, and mandates the default outcome of release, departure or deviance from either results in an unlawful decision (Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203). In a detention review, the range of lawful decisions available to the ID member is constrained by section 58 of the IRPA and section 248 of the Regulations. If a detention order has not been made according to law, it will be set aside. For example, an ID member’s failure to consider the likelihood of removal, relevant factors in section 248 or beyond, or alternatives to detention, would result in the decision being set aside. Release would follow unless the Federal Court order is stayed.\n\nMy second observation is that the assertion made to this Court, and to the Supreme Court in Chhina, that judicial reviews were invariably moot has no foundation in the evidence.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-67", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 157–158", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The evidence paints a different picture. As Abella J. noted in Chhina, the Federal Court heard and disposed of Mr. Chhina’s judicial review application in one week less time than the habeas corpus application was heard and decided (at para. 119). Again, a cursory review of Federal Court jurisprudence with respect to detention review demonstrates that applications for judicial review are often heard and disposed of in the Federal Court on an urgent basis (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Shen, 2020 FC 405; Hamdan; Arook; and Taino).\n\nI agree with my colleague, Justice Stratas, who has recently observed that the “factual spin and speculation about the procedural flexibility, innovative capability and remedial effectiveness of the Federal Courts” in Chhina and R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61 is “false and unsupported” (Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 22).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-68", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 159", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court is accessible 24 hours a day, 365 days a year, from coast to coast for urgent applications, in both official languages. Interim stay orders are frequently issued (Federal Courts Act, section 18.2). Time frames are routinely abridged (see, e.g., MPSEP v. Mustafa Abdi Faarah ((IMM-1347-19); MPSEP v. Martin Sevic (IMM-1375-20); Canada (Public Safety and Emergency Preparedness) v. Ahmed, 2019 FC 1006; MPSEP v. Baniashkar, 2019 FC 729; Hamdan and Arook). Hearing dates are routinely expedited. Hearings may be by teleconference, or in person, in Federal Court facilities across Canada. Cases are heard and disposed of as quickly as the parties request or circumstances require (see, e.g., MPSEP v. Malkei, IMM-2466-20; MPSEP v. Shen, IMM-1626-20). Federal Court judges assigned to hear judicial review applications of detention decisions understand that liberty interests are at stake. The remedies can be innovative and creative (see, e.g., Fond du Lac First Nation v. Mercredi, 2020 FCA 59 at para. 5; Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93; D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167). Further, and unlike many superior courts, there is a standing liaison committee between the Federal Court and representatives of the specialized immigration bar. This committee, including the sub-committee on immigration detention, serves as a vehicle for addressing any matter of concern relating to the efficient and expeditious disposition of immigration proceedings.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-69", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 160–163", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In any event, the possibility that an ID decision may be moot is not pertinent. Technically moot decisions may be reviewed where the failure to do so would render the decision evasive of judicial review (Democracy Watch v. Canada (Attorney General), 2018 FCA 195 at para. 14).\n\nTo conclude, judicial review, like habeas corpus, tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity. It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective. As the Supreme Court concluded in Charkaoui, the remedy of judicial review is “robust” (at para. 123).\n\nThe Federal Court certified the following question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nI would answer the question in the negative and would dismiss the appeal. Consistent with the request of the parties, I would make no order as to costs. \"Donald J. Rennie\" J.A. “I agree. Johanne Gauthier, J.A.” “I agree. David Stratas, J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-36347-1", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 1–4", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a decision of the Federal Court, 2008 FC 341, dated March 13, 2008, pursuant to which Madam Justice Dawson dismissed the appellants’ judicial review application on the ground that it was moot. In so concluding, the learned Judge certified the following question: Where an applicant has filed an application for leave and judicial review challenging a refusal to defer removal pending a decision on an outstanding application for landing, and a stay of removal is granted so that the person is not removed from Canada, does the fact that a decision on the underlying application for landing remains outstanding at the date the Court considers the application for judicial review maintain a “live controversy” between the parties, or is the matter rendered moot by the passing of scheduled removal date?\n\nAs the certified question makes clear, the appellants filed an application for leave to commence a judicial review following the refusal by an enforcement officer to defer their removal from Canada until a decision had been rendered with regard to a humanitarian and compassionate application (“H&C application”) made by them pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).\n\nTwo issues arise in this appeal. The first one is the issue of mootness to which the certified question pertains. The second issue, which we need address only if we conclude that the judicial review application is not moot, concerns the reasonableness of the enforcement officer’s decision to refuse to defer the appellants’ removal from Canada.\n\nI now turn to the facts relevant to the disposition of the appeal. THE FACTS", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-2", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 5–8", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants are citizens of Argentina who entered Canada in April 2000 as visitors. In November 2000, shortly after their visas expired, they filed claims for refugee protection which were rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board on May 30, 2002. As a result, the departure orders made against them when they filed their refugee claims became effective. On October 16, 2002, their application for leave to commence a judicial review application was dismissed by the Federal Court.\n\nOn November 30, 2004, counsel for the appellants made an inquiry with regard to an H&C application which, according to counsel, had been submitted on behalf of the appellants in March 2003. The Case Processing Centre in Vegreville responded to this inquiry and advised counsel that it had no record of an H&C application having been filed on behalf of the appellants.\n\nIn January 2006, warrants were issued against the appellants by reason of their failure to report for a pre-removal interview. The warrants were executed against them in March and July 2006, at which time they were again informed that there was no record of a pending H&C application made on their behalf.\n\nOn September 5, 2006, the appellants filed an H&C application which was returned to them for insufficient funds. The application was resubmitted on December 8, 2006, this time with the proper funds. During that period, the appellants also filed a pre-removal risk assessment (a “PRRA”) which was refused. As a result, the appellants were served with a direction to report for removal from Canada on January 18, 2007.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-3", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 9–12", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants having purchased airline tickets for themselves and their children for a return to Argentina on February 15, 2007, their removal was deferred to that date so as to allow them extra time to make necessary arrangements for their departure from Canada. I should point out here that the appellants have two Canadian-born children, Yan Sebastian who is 7 seven years and Zoe who is 4 years old (respectively 5 and 2 years old at the time of the enforcement officer’s decision)..\n\nNotwithstanding the foregoing, on January 26, 2007, the appellants made a further request to have their removal deferred, i.e. that deferral be granted until such time as their H&C application had been decided. On January 29, 2007, the enforcement officer refused to defer their removal.\n\nThis led the appellants to seek leave of the Federal Court to commence a judicial review application of the enforcement officer’s decision. On February 9, 2007, O’Keefe J. stayed the appellants’ removal from Canada until a decision had made on their judicial review application and on October 19, 2007, leave to pursue a judicial review was granted by the Federal Court.\n\nThe appellants’ judicial review application was heard by Dawson J. on January 17, 2008. She dismissed it on March 13, 2008. It is to that decision that I now turn. DECISION OF THE FEDERAL COURT", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-4", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 13", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Dawson J. found the appellants’ judicial review application to be moot. In her view, a decision on the merits of the application would not resolve any controversy between the parties. The substance of the learned Judge’s reasoning appears from paragraphs 33 to 38 of her Reasons, which I reproduce: [33] The applicants are subject to a valid removal order and were directed to report for removal on January 18, 2007, on Air Canada flight #92. In order to issue the direction to report, the CBSA was first required to make a number of travel arrangements, including ensuring the availability of travel documents, an itinerary and airline tickets, and to notify the airline of its requirement to carry a foreign national from Canada. [34] The effect of the stay issued by the Court was to render those arrangements nugatory when the date scheduled for removal passed and the applicants remained in Canada. Whether the Court now decides that the decision of the enforcement officer was reasonable or not, the applicants have received the deferral that the officer refused. It is now an abstract question whether the enforcement officer ought to have deferred removal. [35] For the following reasons, I can see no practical effect on the rights of the parties if this case is decided on its merits. If the case is decided and dismissed, the stay will come to an end, the CBSA can make new removal arrangements, and the applicants can request deferral again. That same result will occur if the application is allowed on the same basis as in Samaroo, cited above. The validity of the removal order is not affected; the applicants remain subject to removal. [36] In either event, the parties will only have the benefit of the Court's view of the propriety of removal on stale-dated facts.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-5", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 13", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the exercise of discretion to defer removal is very fact-based. There is no way of knowing whether, since the decision at issue was made, there have been intervening circumstances of risk, pregnancy, birth, illness, or the like. Further, the jurisprudence of the Court is to the effect that the length of time that a humanitarian and compassionate application has been outstanding is a relevant consideration when considering requests for deferral. In the present case, the applicants' humanitarian and compassionate application has now been outstanding for an additional 12 months. A decision on stale facts will be of little use to the parties if further removal arrangements are made. [37] Even if the application is allowed, remitted to a new officer for determination and updated information about the applicants' circumstances is obtained, the parties will be in the same position as if the Court had dismissed the application, either on the merits or on the basis of mootness, and new removal arrangements were made. [38] Thus, any decision on the merits of this application will not resolve any controversy between the parties. The application is therefore moot and, further, no useful purpose would be served by determining the application on its merits. [Emphasis added]", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-6", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 14–15", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Dawson J. then went on to deal with the respondent’s argument that the proper characterization of the controversy between the parties was whether the appellants ought to be removed before their H&C application was dealt with. In Dawson J.’s view, that characterization was in error. She explained her opinion as follows at paragraphs 44 and 45: [44] The officer is charged with the duty of effecting removal as soon as is “reasonably practicable.” Equally, subsection 48(2) of the Act requires the subject of an enforceable removal order to leave Canada immediately. In the face of a looming removal date, the officer is presented with a series of facts that are said to warrant deferral at that point in time. The officer then decides whether the facts are such to render removal impracticable, and thus relieve the applicant of his or her obligation to leave immediately. For example, the officer may be asked to defer removal because a humanitarian and compassionate application has been outstanding for 18 months at the time of removal. The officer is not asked to consider, and does not consider, whether removal would be deferred if the application had instead been outstanding for 30 months. [45] For that reason, I find that the proper characterization of the dispute is whether an applicant should be removed, and is obliged to leave, on the scheduled removal date. [Emphasis added]\n\nDawson J. also declined to exercise her discretion to decide the judicial review application. Although she was of the view that an adversarial relationship still existed between the parties, deciding the case on the merits would have, in her view, no practical effect or useful purpose with regard to the parties’ rights.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-7", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 16–17", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "I should point out that Madam Justice Dawson’s decision is only one of a number of recently-determined cases by the Federal Court where it has been held that a judicial review application of an enforcement officer’s decision refusing to defer a person’s removal from Canada is moot (see: Higgins v. M.P.S.E.P., 2007 FC 377; Solmaz v. M.P.S.E.P., 2007 FC 607; Maruthalingam v. M.P.S.E.P., 2007 FC 823; Vu v. Minister of Citizenship and Immigration, 2007 FC 1109; Madani v. M.P.S.E.P., 2007 FC 1168; Adams v. M.P.S.E.P., 21 November 2007 (Court file IMM-4121-07) (F.C.); Kovacs v. M.P.S.E.P., 2007 FC 1247; Baron v. M.P.S.E.P., 2008 FC 341; Islami v. M.P.S.E.P., 2008 FC 364; Leung v. M.P.S.E.P., 17 April 2008 (Court file IMM-3712-07) (F.C.); Palka v. M.P.S.E.P., 2008 FC 342; Lewis v. M.P.S.E.P., 2008 FC 719; and Gumbura v. M.P.S.E.P., 2008 FC 833). THE PARTIES’ SUBMISSIONS\n\nThe appellants submit that the Judge mischaracterized the nature of the dispute between the parties as being “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date.” Rather, the appellants contend that they had requested that their removal from Canada be deferred “pending a determination of their H&C application.” Therefore, the dispute between the parties was not simply whether the appellants’ removal should proceed or not on the scheduled removal date, but whether it should be deferred pending determination of the H&C application. The appellants submit that this controversy remained live at the time of the judicial review application hearing, and remains alive today, since the decision on the appellants’ H&C application remains pending.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-8", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 18–19", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the alternative, the appellants submit that the Judge erred in declining to exercise her discretion, even if the judicial review application was moot. The appellants contend that the Judge erred in finding that there would be no practical effect on the rights of the parties if she decided the case.\n\nWith respect to the decision challenged by the judicial review application, the appellants submit that this Court should find that the enforcement officer erred in refusing to defer their removal pending the determination of their outstanding H&C application. They submit that a very long time has passed since they first attempted to file an H&C application and that the best interests of their Canadian children militate in favour of a deferral.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-9", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 20–21", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent submits, as the appellants do, that the judicial review application is not moot. He argues that the correct characterization of the controversy between the parties is whether the appellants should be removed prior to the happening of a particular event, i.e. prior to the determination of their pending H&C application. It is then not the passing of the scheduled removal date which renders the judicial review application moot, but the happening of the event. The respondent disagrees with the Judge’s conclusion that a determination on the merits of the application would be of little use to the parties, and argues that a decision on the merits of the enforcement officer’s decision would provide a real remedy to the parties. Furthermore, the respondent submits that the mootness determination yields an inequitable outcome, since all stay motions where a stay of removal is granted will pre-judge the outcome of the leave and judicial review application, essentially turning stay motions into judicial review applications on short notice and often on a deficient record. The respondent contends that it could not have been intended for the application of the tri-part test to have this effect (see: Manitoba (A.G.) v. Metropolitan Stores (MPS) Ltd., [1987] 1 S.C.R. 110; Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.); R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311).\n\nWith respect to the merits of the application, the respondent submits that the enforcement officer did not err in refusing to defer removal until a decision had been made on the appellants’ pending H&C application. The respondent argues that in light of section 48 of the Act, the Minister was bound to execute the removal order as soon as reasonably practicable.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-10", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 22–25", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, the respondent says that the enforcement officer considered all of the appellants’ circumstances, including the best interests of their children. THE ISSUES\n\nThe questions which we must determine in the present appeal are the following: 1. Did the Applications Judge err in law by dismissing the judicial review application for mootness and by refusing to exercise her discretion to hear the case? 2. If the answer to the first question is in the affirmative, did the enforcement officer make a reviewable error in refusing to defer the appellants’ removal from Canada pending the determination of their outstanding H&C application? ANALYSIS A. Standard of Review\n\nThere is no dispute between the parties that the appropriate standard of review with respect to the mootness issue is the correctness standard. I agree (See: Housen v. Nikolaisen, [2002] 2 S.C.R. 235).\n\nWith respect to the enforcement officer’s decision refusing to defer the appellants’ removal from Canada, I cannot see how it can be disputed that the applicable standard is that of reasonableness (See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190). B. Did the Applications Judge Err in Law by Dismissing the Judicial Review Application for Mootness and by Refusing to Exercise her Discretion to Hear the Case?", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-11", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 26–28", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Both the appellants and the respondent submit that the Judge erred in law in dismissing the application for judicial review on the basis that it was moot. They argue that a live controversy continues to exist between them and that it is not the passing of the scheduled date of removal, i.e. February 15, 2007, which renders the application moot. In their view, although put forward in slightly different terms, it is the rendering of a decision on the appellants’ H&C application that would render the judicial review moot.\n\nI have come to the conclusion that a live controversy still exists between the parties and that, as a result, the appellants’ judicial review application is not moot.\n\nTo begin with, it is important to make clear what the appellants were seeking when they requested deferral of their removal from Canada on February 15, 2007. As the enforcement officer says in her decision, the appellants’ request was put forward on the grounds that they had an outstanding H&C application [which the appellants say they had attempted to file in March 2003] and that it was in the best interest of their Canadian-born children that removal be deferred until the H&C application had been dealt with. In other words, the appellants were not simply asking that they not be removed on February 15, 2007, but that their removal not take place until the determination of their H&C application.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-12", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 29–30", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "I agree entirely with the parties that the determination of the mootness issue depends on the proper characterization of the controversy that exists between them. In this regard, the parties implicitly concede that if the characterization of the dispute as found by the Judge, i.e. “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date” (paragraph 45 of her Reasons), is correct, then the judicial review application is moot. However, they submit that the proper characterization is whether the appellants should be removed prior to the determination of their H&C application. At paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his submission as follows: 33. The correct characterization of the controversy, however, is whether an applicant should be removed prior to the happening of a particular event, such as prior to the determination of a pending H & C application. It is then not the passing of the removal date which renders the judicial review application moot, but the happening of the event. This characterization of whether removal is reasonably practicable prior to the happening of the event is entirely consistent with the enforcement officer’s mandate under section 48 of the IRPA to execute a removal order as soon as reasonably practicable. It is this characterization of the controversy that the Applications Judge should have adopted, and erred in failing to do so.\n\nSince the appellants’ H&C application had not been dealt with at the time of the hearing before the learned Applications Judge [and I am not aware of any determination having been made since Dawson J. rendered her decision], the parties take the position that the controversy still exists between them and thus that the matter is not moot.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-13", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 31–33", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the parties have properly characterized the nature of the controversy which exists between them. I find support for this view in the Reasons given by Strayer D.J. in Amsterdam v. M.C.I., 2008 FC 244, where he dismissed an application for judicial review of the decision of an enforcement officer who had refused to defer the applicant’s removal from Canada. Although Strayer J. was of the view that on the facts before him, the judicial review application was moot, he nonetheless exercised his discretion to decide the application on its merits.\n\nIn Amsterdam, supra, the applicant was scheduled to be removed from Canada on June 6, 2007. On May 31 of that year, he sought a deferral of his removal so as to allow him to attend a Family Court conference scheduled for July 31, 2007, and to see a medical specialist with whom he had an appointment on September 27, 2007. Notwithstanding this information, the enforcement officer advised the applicant on June 4, 2007, that it would not be appropriate to defer his removal from Canada.\n\nOn June 5, 2007, the applicant filed an application for leave and for judicial review and he applied for a stay of removal, which was successful. Leave to commence a judicial review application was subsequently granted and the application on its merits was heard by Strayer J. on February 12, 2008.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-14", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 34–35", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "As I indicated earlier, Strayer J. believed that the application was moot. At paragraph 11 of his Reasons, he said the following: [11] I am satisfied that the judicial review of the Enforcement Officer’s refusal to defer removal is moot due to a stay having been issued by this Court to permit the Applicant’s presence in Canada for two events which have long since passed, the very events for which delay was refused in the decision under review. The evidence put before the Court was that it was necessary that the Applicant remain in Toronto to be present at a Family Court Case Conference in the Ontario Superior Court set for July 31, 2007 and for an appointment with a specialist which, by the date of the stay hearing, had been fixed for September 27, 2007. [Emphasis added]\n\nAs I also indicated earlier, Strayer J. then went on, notwithstanding his view on the mootness issue, to deal with the merits of the application. After concluding that the enforcement officer’s decision was not unreasonable, he dealt with a request by the applicant that he certify a question very similar to the one certified in this appeal. The question read as follows: Where an applicant has filed an application for leave and judicial review of a decision not to defer the implementation of a Removal Order outstanding against him or her, does the fact that the applicants’ removal is subsequently halted by operation of a stay Order issued by this Court render the underlying judicial review application moot?", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-15", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 36–37", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Strayer J. was of the view that the above question ought not to be certified. In so concluding, he gave the following explanation at paragraph 15 of his Reasons: [15] Nevertheless, I am not prepared to certify such a question. In the first place if I did, and an appeal were taken, an answer to this question would not be determinative of this case because I have determined that the judicial review should also be dismissed on its merits apart from being moot. Secondly, with respect I do not think it is a serious question requiring an answer. There seems to be a wide measure of consensus in this Court, indicated in the cases cited above, that such a question should be answered in the affirmative. I find it hard to see how it could be otherwise: if the complaint in the judicial review is that the Enforcement Officer did not defer removal until the occurrence of some event which the Applicant considered justified the deferral, and as a result of a stay granted by this Court that event has in the meantime occurred. In such circumstances there can be no practical effect of a judicial review decision. [Emphasis added]\n\nAs I understand Strayer J.’s Reasons, it is the passing of the events in respect to which the applicant was seeking a deferral of his removal, i.e. a Family Court conference and a medical appointment, which rendered the judicial review application moot. In those circumstances, as Strayer J. says above, “… there can be no practical effect of a judicial review decision”. I cannot but agree with that statement in light of the facts before the learned Judge. It is clear, however, that Strayer J. did not conclude that the application before him was moot simply because the removal date had come and gone, which is the position adopted by the Applications Judge.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-16", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 38–40", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, in my view, since the event which the appellants invoke in seeking a deferral has not occurred, I cannot see how it can be said that there is no existing controversy between the parties and that no practical effect can result from a decision on the judicial review. While the specific timing of the removal arrangements which had been made prior to the issuance of the stay by O’Keefe J. is no longer valid, this does not, in my respectful view, render the issues raised in the judicial review application moot. The concrete or real controversy between the parties, i.e. the execution of the removal order prior to the determination of the appellants’ H&C application, remains alive.\n\nI will briefly examine what effect a decision on the merits of the appellants’ judicial review application might have. Prior to such a determination, the appellants could not be removed by reason of the stay granted by O’Keefe J. However, different consequences will follow, depending on the determination of the application.\n\nShould this Court decide the judicial review in favour of the appellants, the matter would then be remitted to an enforcement officer for redetermination in the light of the Court’s Reasons. On redetermination, the enforcement officer might grant the request for deferral until the H&C application has been dealt with. As a result of such a determination, the appellants would not be removed until a negative decision, if that be the case, had been rendered on their H&C application. On the other hand, the enforcement officer might again refuse to defer removal and the appellants might challenge that decision by way of a new judicial review application.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-17", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 41–43", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Should the Court dismiss the judicial review application on its merits, the stay order would no longer be in effect and a new removal date would most likely be scheduled. While it is true that the appellants could once again ask the enforcement officer for a deferral, new facts, in my view, would have to be put forward, failing which the likely scenario is that the enforcement officer would dismiss the request for deferral. It is also possible that absent new facts, the appellants would not seek a deferral and would leave Canada.\n\nI might add that should the appellants, in the absence of additional material facts, seek a deferral which results in a refusal by the enforcement officer, and should the appellants, in those circumstances, seek to obtain leave to commence a judicial review application and to obtain a stay of removal, it would certainly be open to the Federal Court to take the view that the appellants’ proceedings constitute an abuse of process and deal with those proceedings accordingly.\n\nI am therefore of the view that should this Court dispose of the judicial review application on its merits, it cannot be said that the parties would be in the same position as if the Court had dismissed the application for mootness. I would also add that mootness does not necessarily follow because a decision on the merits will not entirely settle the debate between the parties.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-18", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 44–46", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "A final comment on this issue. In Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, at paragraphs 29 to 42, the Supreme Court identified three factors that a court should consider in deciding whether or not to exercise its discretion to hear the merits of an action or an application for judicial review which it finds to be moot: (1) the existence of an adversarial relationship between the parties; (2) the concern for judicial economy; and (3) the need for the court not to intrude into the legislative sphere.\n\nIn the present matter, it is undisputed that there remains an adversarial relationship between the parties with respect to the execution of a removal order prior to the determination of an H&C application. With respect to judicial economy, a decision from this Court on whether or not a pending H&C application and the interests of Canadian-born children in that specific context warrant a deferral of removal will certainly provide guidance to parties in future cases as well as to the parties in this appeal. Furthermore, these cases are of a recurring nature, in that the dismissal of a judicial review application for mootness means that the case will be returned to the enforcement officer to set a new date for removal, which will likely trigger a new request for deferral of removal and potentially a new application for a stay of removal. Lastly, a decision on the merits of the application will clearly not intrude into the legislative scheme.\n\nBearing in mind the factors identified by the Supreme Court in Borowski, supra, had I been of the view that the application was moot, I would have had no hesitation in deciding that this Court ought to deal with the merits of the application.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-19", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 47–48", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "I now turn to the second issue. C. Did the Enforcement Officer Err in Refusing to Defer the Appellants’ Removal from Canada Pending a Determination of Their Outstanding H&C Application?\n\nIn dealing with the enforcement officer’s discretion to defer removal pursuant to section 48 of the Act, it is important to keep in mind the wording of that provision, which is as follows: 48. (1) A removal order is enforceable if it has come into force and is not stayed. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as soon as is reasonably practicable. [Emphasis added] 48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis. (2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. [Non souligné dans l’original] Thus, where a removal order is enforceable, any person subject thereto must leave the country and the enforcement officer is bound to enforce the order “as soon as is reasonably practicable”.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-20", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 49–50", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is trite law that an enforcement officer’s discretion to defer removal is limited. I expressed that opinion in Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936 (T.D.) (QL), 7 Imm.L.R. (3d) 141, at paragraph 12: [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is \"reasonably practicable\" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year.\n\nI further opined that the mere existence of an H&C application did not constitute a bar to the execution of a valid removal order. With respect to the presence of Canadian-born children, I took the view that an enforcement officer was not required to undertake a substantive review of the children’s best interests before executing a removal order.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-21", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 51", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsequent to my decision in Simoes, supra, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a removal order, to address the issue of an enforcement officer’s discretion to defer a removal. After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’s discretion to defer. In Reasons which I find myself unable to improve, he made the following points: - There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths. - The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission. - In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-22", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 51–53", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. - Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application. I agree entirely with Mr. Justice Pelletier’s statement of the law.\n\nWith these principles in mind, I now turn to the enforcement officer’s decision.\n\nIt is clear from the enforcement officer’s decision that she considered all of the relevant facts which were before her. First, she addressed the fact that the appellants had a pending H&C application. She correctly noted that the filing of such an application, at a late stage in the removal process, was not per se an impediment to removal. She remarked that the appellants had been informed in 2004 that no H&C application had been filed by them, contrary to what they apparently believed, and that they waited until 2006 to make their application. As a result, she was of the view that deferral on that ground was not warranted.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-23", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 54–56", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The enforcement officer then turned her attention to the best interests of the children. She was of the view that if the children left Canada with their parents, “any kind of emotional disturbance the children may suffer due to their removal from Canada will likely be one of a temporary nature”. She also noted that the children were young and that they could easily adapt to a new environment. She also noted that no evidence had been adduced that the children could not enrol in an English medium school where they could learn English as a first or second language. Lastly, she indicated that since both parents would be present in the children’s lives in Argentina and that the appellants’ parents also lived in Argentina, the children would have adequate emotional support and an existing support base in their new country.\n\nThe enforcement officer concluded her decision by making it clear that had there been a true impediment to removal or if a decision on the H&C application had been imminent, she would have granted a deferral.\n\nIn making their submission that the enforcement officer made reviewable errors, the appellants make the following points.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-24", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 57", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to the best interests of the children, they state that the officer ought to have deferred their removal pending the determination of their H&C application so as to fulfill Canada’s obligations under the Convention on the Rights of the Child. In my view, this argument is without merit. The enforcement officer considered the children’s best interests and concluded that no serious practical impediment existed to prevent removal of their parents to Argentina. The fact that the appellants intend to take their children with them to Argentina and that the children might not be able to return until their parents regularize their status in Canada or until they become adults is not, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegal immigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-born children (see: Legault v. M.C.I, 2002 FCA 125, para. 12; see also with respect to international law: Baker, supra; Langner v. M.E.I., [1995] F.C.J. No. 469 (C.A.) (QL)). I might add that the officer went further than required in her consideration of the children’s best interests. As I stated in Simoes, supra, an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order. I believe that Pelletier J.A.’s Reasons in Wang, supra, support this view.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-25", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 58–59", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to their pending H&C application, the appellants submit that the enforcement officer erred in failing to have regard to the special circumstances surrounding their application. They say that the issue was not whether they had submitted an application in 2003 or 2004, but rather that they had attempted, through their former attorney, to submit such an application in March 2003, adding that for reasons unknown to them, the application had never been received in Vegreville. They also say that it is only in 2006 that they became aware of the fact that their March 2003 application had never been received. The appellants further point out that a new delay occurred when a second application in September 2006 was returned to them by reason of insufficient funds, which application they resubmitted in early December 2006. It is for these reasons, the appellants submit, that their attorneys requested that their H&C application be expedited because of almost a four year delay due to no fault on their part.\n\nThus, in the appellants’ submission, the enforcement officer asked herself the wrong question when she focussed her attention on whether the “original” H&C application had been submitted in 2003 or 2004, and on the fact that their second application had been filed late in the day.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-26", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 60–63", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, these arguments cannot succeed. First, I have not been persuaded that the enforcement officer made a reviewable error in her review and consideration of the evidence. What the appellants are asking us, in effect, is to reassess the evidence so as to reach a different conclusion. In my view, that is not open to us. Second, in the light of the principles enunciated in both Simoes, supra and Wang, supra, I fail to see on what ground this Court could interfere with the enforcement officer’s decision.\n\nI therefore conclude that the enforcement officer’s decision to refuse deferral of the appellants’ removal from Canada was reasonable and that the decision must stand.\n\nThis is sufficient to dispose of the appeal. However, before concluding, I feel compelled to make a few additional remarks.\n\nIt is important to note that in concluding that a deferral was not warranted in the circumstances before her, the enforcement officer emphasized the fact that the appellants had failed to report for their pre-removal interviews of January 21, 2006. The enforcement officer also emphasized the fact that it had been necessary to issue warrants against the appellants, which were executed in March and July of 2006. She could also have emphasized the fact that the appellants, in order to delay their removal scheduled for January 18, 2007, had undertaken to leave the country with their children on February 15, 2007, which undertaking they failed to respect. The enforcement officer could have also considered relevant the fact that the departure orders made against the appellants at the time they filed their refugee claims had become effective on May 30, 2002.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-27", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 64", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Events of this type, i.e. where persons fail to comply with the requirements of the Act or act in a way so as to prevent the enforcement thereof, should always be high on the list of relevant factors considered by an enforcement officer. It is worth repeating what this Court said at paragraph 19 of its Reasons in Legault, supra. Although the issue before the Court in Legault, supra, pertained to the exercise of discretion in the context of an H&C application, the words of Décary J.A. are entirely apposite to the exercise of discretion by an enforcement officer: [19] In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. [Emphasis added]", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-28", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 65", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, if the conduct of the person seeking a deferral of his or her removal either discredits him or creates a precedent which encourages others to act in a similar way, it is entirely open to the enforcement officer to take those facts into consideration in determining whether deferral ought to be granted. Neither enforcement officers nor the courts, for that matter, should encourage or reward persons who do not have “clean hands”.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-29", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 66", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "One last remark. In her discussion of the mischief which might arise as a result of the view that applications such as the one before us in this appeal are moot by reason of the passing of the scheduled removal date, Madam Justice Dawson made a number of highly relevant remarks. One of these remarks is found at paragraph 65 of her Reasons, where she says: [65] Further, the potential for abuse will be mitigated significantly by the Court's continued discipline when considering stay requests and, where a stay is granted, by careful consideration by the CBSA, before new removal arrangements are made, of the serious issue identified by the Court. It should be remembered that, for a stay to be granted, the Court will have identified at least one issue that carries with it the likelihood of success on the underlying application. It is not enough for the Court to simply find that an issue is not frivolous or vexatious. (See: Wang, cited above). […] [Emphasis added] These comments take me back to Pelletier J.A.’s Reasons in Wang, supra, where he dismissed the motion before him for a stay of removal because the applicant had not satisfied him that the underlying application raised a serious issue. This conclusion was the result of his view that on such a motion, in determining the “serious issue” prong of the tripartite test enunciated in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (and adopted by this Court for the purposes of determining applications for a stay of removal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587), the Judge ought to “go further and closely examine the merits of the underlying application” (paragraph 10 of his Reasons).", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-30", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 66–68", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "In other words, the Judge should take a hard look at the issue raised in the underlying application.\n\nWhile I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of a motion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant the granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, supra, and, particularly, in Wang, supra. Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not have such a case to put forward.\n\nHad O’Keefe J. turned his mind to the limited nature of the enforcement officer’s discretion and to the applicable standard of review, he would not have concluded that the judicial review application raised a serious issue and, hence, would not have granted a stay.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-31", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 69–72", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is also clear, in my respectful opinion, that there was no basis for him to conclude that irreparable harm would occur if the removal order was not stayed. As this Court and the Federal Court have constantly repeated, one of the unfortunate consequences of a removal order is hardship and disruption of family life. However, that clearly does not constitute irreparable harm. To paraphrase the words of Pelletier J.A. found at paragraph 88 of his Reasons in Wang, supra, family hardship is the unfortunate result of a removal order which can be remedied by readmission if the H&C application is successful. Further, the fact that the appellants’ children might have to pursue their education in Spanish, because of their parents’ removal to Argentina, clearly does not constitute irreparable harm.\n\nAs a result, I would dismiss the appeal and I would answer the certified question as follows: Because the underlying application for landing remains outstanding at the date the Court considers the application for judicial review, there remains a “live controversy” between the parties and, as a result, the matter is not rendered moot by the passing of the scheduled removal date. “M. Nadon” J.A. “I concur. Alice Desjardins J.A.” BLAIS J.A. (Reasons concurring in the result)\n\nI have read the reasons of my colleague, Nadon J.A., and I respectfully disagree in part.\n\nI will rely on the facts as presented by the Federal Court judge, Justice Dawson, and my colleague in lieu of reproducing them here.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-32", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 73–76", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to my colleague’s analysis of the enforcement officer’s refusal to defer the appellants’ removal, I agree. The determination made by the enforcement officer was well within her narrow discretion, was well reasoned and was within the parameters of previous statements of this Court and the Court below.\n\nWith respect to my colleague’s strong statement regarding the granting of a stay on the basis that the pending judicial review of the enforcement officer’s refusal constituted a serious issue, I firmly agree with both my colleague and with Justice Dawson. Recently, claimants have entered into an abusive cycle of deferral requests, judicial review applications and stay of removal applications. This abusive cycle can be mitigated if judges considering stay applications properly determine whether a serious issue exists by reviewing the judicial review application for at least one issue with a probability of success. The judicial review underlying the application for a stay of removal in this case reveals little probability of success considering the enforcement officer’s discretion and the ample support she cites in her reasons. The decision granting the appellants’ stay has caused them to remain in Canada for an additional two years, allowing for their children to become more settled and for adaptation to be more difficult should the appellants and their children to return to Argentina.\n\nWith respect, I must disagree with my colleague’s conclusion in regards to the certified question of mootness.\n\nThe parties argue, and my colleague agrees, that the characterization of the root controversy of the judicial review involves whether the appellants should be removed prior to the determination of their pending humanitarian and compassionate (H&C) application.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-33", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 77–78", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "While it is true that the bases of the appellants’ deferral request were the best interest of their children and the determination of their H&C application, the decision for review in this case is whether the enforcement officer properly refused to defer the appellants’ removal in January, 2007. It is not whether the enforcement officer properly determined that the removal would at no time take place before the determination of the H&C application. This is clear from the enforcement officer’s notes to file, where she wrote: In conclusion, this officer realizes that she has limited discretion to defer removal. She would do so if there is [sic] an impediment to removal or if a decision was imminent on the H&C application. However, this is not the case.\n\nIt is of no consequence to determine whether the enforcement officer properly refused the request to defer in January, 2007 since that removal date has passed. In addition, the circumstances will have changed such that the enforcement officer’s conclusions may no longer be pertinent to the facts as they now stand. In my view, Justice Dawson was correct in characterizing the dispute as whether the appellants should have been required to leave on the scheduled removal date. Further, since the granting of a stay has allowed the appellants to receive the deferral that the enforcement officer refused, the review of the enforcement officer’s decision will not change the factual consequence.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-34", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 79–80", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The parties argue that the controversy is whether the appellants should be removed prior to the determination of the H&C application. However, this was not the question before the enforcement officer. In fact, the conclusion of the enforcement officer regarding the lack of imminence of a determination on the H&C application makes it clear that her decision was temporally based.\n\nBy virtue of section 48(2) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 29 (IRPA), once a “removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.” I agree with my colleague that jurisprudence is conclusive that the enforcement officer’s discretion is limited. However, ultimately an enforcement officer is intended to do nothing more than enforce a removal order. While enforcement officers are granted the discretion to fix new removal dates, they are not intended to defer removal to an indeterminate date. On the facts before us, the date of the decision on the H&C application was unknown and unlikely to be imminent, and thus, the enforcement officer was being asked to delay removal indeterminately. An indeterminate deferral was simply not within the enforcement officer’s powers. (my emphasis)", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-35", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 81–83", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Over the years, the duties of enforcement officers have not changed, and yet, the bases upon which applicants rely to obtain deferrals have dramatically increased. I am of the view that the scope of the enforcement officer’s discretion cannot be changed by virtue of the requests made. An enforcement officer’s role is not to assess the best interests of the children or the probability of success of any application. An enforcement officer’s role should remain limited and deferral should be contemplated in very limited circumstances.\n\nThe legislation has not, to my knowledge, provided a new step to claimants who desire yet another assessment of their circumstances. Claimants already have the refugee application process, the pre-removal risk assessment (PRRA) process and the H&C application in addition to judicial reviews of those processes and the stay before removal.\n\nIn this case, it appears that the claimants want to open yet another avenue of review by asking the enforcement officer to reassess information that has already been examined by administrative tribunals and that was the subject of judicial review. For the enforcement officer to comply with this request for reassessment would be akin to the enforcement officer making a quasi-judicial order without the benefit of hearing from opposing counsel. It’s time to stop this abusive cycle.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-36", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 84–85", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "To further illustrate why the question before Justice Dawson was moot, consider the following hypothetical situation: if Justice O’Keefe had not granted the stay, and the appellants had been removed to Argentina, the judicial review before Justice Dawson would still have proceeded. Seeing as the appellants had already been removed on the scheduled removal date, Justice Dawson would likely still determine that the issue was moot, for the decision regarding the specified date had passed. But, if instead of making a finding of mootness, Justice Dawson found that the enforcement officer had made an error in not deferring the removal date, what would be the result? Would the appellants be permitted to return to Canada just for a second removal date to be set to have them removed? Would they request yet another deferral from a second enforcement officer? The possibility risks nonsense.\n\nThe more likely consequence is that the appellants would wait in Argentina for a determination of their H&C application and, if the application is successful, would be readmitted.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-37", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 86", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Under subsection 11(1) of the IRPA, a foreign national wishing to establish permanent resident status must apply for a visa before entering Canada. The IRPA makes it clear that H&C applications are intended to be used only as exceptions to this requirement. H&C applications are meant to allow for an application to be processed from within Canada where the Minister considers that humanitarian and compassionate grounds make this exemption justified: 25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. 25.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-38", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 86–88", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. (2) Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.\n\nH&C applications are not intended to obstruct a valid removal order. Where a PRRA has revealed that the applicants are not at risk if they are returned, then the applicants are intended to make future requests for permanent residence from their home country.\n\nIn the appellants’ case, the H&C application is still pending. It is my view that this still does not prevent their removal. Removing the appellants will not cause irreparable harm to them or their Canadian-born children. Should a new removal date be scheduled, the appellants are likely to ask the enforcement officer for a deferral. I believe my colleague’s indication that new facts would need to be put forward to support such a request is optimistic. These appellants have continued to raise the same arguments throughout their dealings with immigration officials in Canada and the likelihood that they will continue to raise these arguments, or versions thereof consistent with the passing of time, is high.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-39", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 89", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Therefore, I would dismiss this appeal with costs and answer the certified question as follows: The removal date having passed, the determination of the reasonableness of the enforcement officer’s refusal to defer the removal date in January 2007 is without consequence and therefore the matter is rendered moot. “Pierre Blais” J.A. FEDERAL COURT OF APPEAL", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-520921-1", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 1–3", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Maria Camila Galindo Camayo is a citizen of Colombia. As a child, she and members of her family were found to be people in need of protection in Canada, based upon her mother having been targeted for extortion by the Fuerzas Armadas Revolucionarias de Colombia.\n\nWhen it came to the attention of the Minister of Citizenship and Immigration that Ms. Galindo Camayo had used a Colombian passport to take numerous trips to Colombia and other countries, the Minister commenced an application for the cessation of her protected person status. The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Ms. Galindo Camayo had voluntarily reavailed herself of the diplomatic protection of Colombia. As a result, the Minister’s application was granted, and Ms. Galindo Camayo’s claim for protection was deemed to have been rejected.\n\nIn reasons reported as 2020 FC 213, the Federal Court set aside the RPD’s decision on the basis that the RPD’s finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unreasonable. The Federal Court ordered that the matter be remitted to a differently constituted RPD panel for redetermination. The Federal Court did, however, certify the following questions: 1) Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27, c.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-2", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 3–5", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "27 (“IRPA”)] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? 2) If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? 3) If yes to Question 1, can evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] be relied on to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nI understand from the parties that the first question is no longer in issue as this Court has previously held that a minor who obtains refugee protection as a dependant under a parent’s claim is indeed subject to the same immigration consequences as the parent claimant: Canada (Minister of Citizenship and Immigration) v. Tobar Toledo, 2013 FCA 226.\n\nInsofar as the second question is concerned, the Minister asserts that the Federal Court erred in finding the RPD’s decision to be unreasonable. The Federal Court found that Ms. Galindo Camayo’s lack of knowledge of the Canadian immigration consequences of travelling internationally using a Colombian passport was sufficient to rebut the presumption of intent to reavail. According to the Minister, the state of the individual’s knowledge is not the legal test for cessation nor is it a factor for consideration under that test.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-3", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 6–8", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to the third question, the Minister observes that refugee protection is available to individuals who can establish on a balance of probabilities that they would be at risk of facing persecutory treatment in their country of nationality. Implicit in such a finding is that the person cannot protect themselves from their agent of persecution or obtain such protection anywhere in that country. It is therefore inconsistent with a finding that a person is in need of protection for the individual to later claim that they are able to protect themselves sufficiently as to allow them to return to their country of nationality. The Minister says that the Federal Court thus erred in considering the fact that Ms. Galindo Camayo obtained private security while she was in Colombia as evidence that she did not intend to reavail herself of the protection of the state.\n\nFor the reasons that follow, I have concluded that the Federal Court did not err in finding that the Board’s decision was unreasonable. Consequently, I would dismiss the appeal. I would only answer the second and third questions and I would answer them in the affirmative.\n\nMs. Galindo Camayo was a minor when she arrived in Canada. She received protected person status in Canada in 2010, when she was 15 years old (for the sake of simplicity, the terms “person in need of protection”, “protected person”, and “refugee” will be used interchangeably in these reasons). Ms. Galindo Camayo returned to Colombia five times since 2010, taking her last trip in late 2016 and early 2017, when she was a 21-year-old college student.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-4", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 9–12", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Ms. Galindo Camayo travelled on a Colombian passport on each of these occasions. She initially used the passport that her mother had obtained for her. However, she turned 18 during her second trip to Colombia and she was advised by Colombian authorities that she had to apply for an adult passport in order to be able to return to Canada. Ms. Galindo Camayo received a new adult Colombian passport in August of 2013, returning to Canada shortly thereafter.\n\nIn addition to the five trips to Colombia that Ms. Galindo Camayo took after receiving protected person status, she visited Mexico three times, and she took trips to the United States and Cuba. Ms. Galindo Camayo travelled on her Colombian passport on each occasion.\n\nOn January 27, 2017, the Minister applied to cease Ms. Galindo Camayo’s protected person status, pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Subsection 108(2) provides that “[o]n application by the Minister, the Refugee Protection Division may determine that refugee protection … has ceased for any of the reasons described in subsection (1)”.\n\nParagraph 108(1)(a) of IRPA provides that “[a] claim for refugee protection shall be rejected, and a person is not … a person in need of protection … [if] the person has voluntarily reavailed themself of the protection of their country of nationality”. The full text of these and other relevant statutory provisions is attached as an appendix to these reasons.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-5", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 13–16", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister asserts that Ms. Galindo Camayo had voluntarily and intentionally reavailed herself of the protection of her country of nationality by obtaining a Colombian passport and by using it to travel to Colombia and elsewhere. As a result, the Minister says that Ms. Galindo Camayo’s claim for protected person status should be deemed to have been rejected.\n\nMs. Galindo Camayo argued before the RPD that she did not voluntarily reavail herself of Colombia’s protection under section 108 of IRPA by acquiring Colombian passports. It was her mother, and not Ms. Galindo Camayo herself, who had applied for her first passport while she was still a minor, and Ms. Galindo Camayo was compelled to obtain her second Colombian passport in 2013 in order to be able to return to Canada.\n\nMs. Galindo Camayo testified that she travelled to Colombia to assist her sick father and to volunteer for a humanitarian mission, and that she did not understand the consequences of her travel for her status in Canada. Ms. Galindo Camayo further stated that she did not avail herself of Colombia’s protection while she was there, as she hired armed private security guards to provide her with protection during each of her trips.\n\nThe RPD agreed with the Minister, finding that Ms. Galindo Camayo had voluntarily reavailed herself of Colombia’s protection as described in paragraph 108(1)(a) of IRPA. The Minister’s application for the cessation of Ms. Galindo Camayo’s status as a protected person was therefore allowed, and her claim for protection was deemed to have been rejected in accordance with subsection 108(3) of IRPA.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-6", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 17–19", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In coming to the conclusion that the Minister’s application should be granted, the RPD only focused on the cessation principles discussed in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR, 2019, UN Doc. HCR/1P/4/ENG/REV.4 (Refugee Handbook). Although it acknowledged (at para. 19) that it was “not bound” by the Refugee Handbook and the guidelines set out in it, the RPD found them “useful and relevant”.\n\nThe RPD noted that in accordance with Article 1C(1) of the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (Refugee Convention) there are three implied criteria to be considered in determining whether cessation had occurred. These are: (1) Voluntariness: The refugee must have acted voluntarily; (2) Intention: The refugee must have intended by his or her actions to reavail him or herself of the protection of their country of nationality; and (3) Reavailment: The refugee must actually obtain state protection.\n\nIn reality, when the RPD decision is examined in its totality in light of the record before it, it is clear that the RPD fastened onto the Refugee Handbook and the particular wording of the Refugee Handbook as if it was domestic law that was binding on the RPD. At paragraph 17 of its reasons, the RPD set out the text of section 108 of IRPA, but it did not interpret it. Indeed, at no time did the RPD attempt to interpret section 108 by examining its text, context and purpose.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-7", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 20–22", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accepting that on a proper interpretation of section 108 of IRPA the three criteria of voluntariness, intention and reavailment are part of the inquiry required by law, what do these terms mean? For example, what acts or statements are relevant to voluntariness or intention?\n\nThe questions can multiply and become more focused, especially in a fact-laden case such as the one at bar. Is the RPD to look solely at the actual subjective intention of the relevant individual and accept it, or is the RPD able to import an objective element into the analysis, such as the reasonableness of the actions and intentions of the relevant individual? These and other questions that can arise in a particular case involve questions of statutory interpretation: exactly when does section 108, properly interpreted, apply to allow the RPD to deem a person’s claim for refugee protection to have been rejected?\n\nInsofar as the question of voluntariness was concerned, the RPD accepted that Ms. Galindo Camayo did not act voluntarily in obtaining her Colombian passports. Her first passport was acquired by her mother when she was a minor, which was a matter outside Ms. Galindo Camayo’s control, and she was compelled to obtain her second Colombian passport in order to be able to leave the country.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-8", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 23–24", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The RPD asserted, however, without any analysis of the requirements of section 108, that the acquisition of passports is not the only relevant factor to consider in assessing the voluntariness of Ms. Galindo Camayo’s actions, and that her use of those passports also had to be considered. In this regard, the RPD found that Ms. Galindo Camayo acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016, and there was insufficient evidence before it to establish that Ms. Galindo Camayo was compelled to use her Colombian passports to take any of these trips.\n\nWith respect to the question of Ms. Galindo Camayo’s intention in using her Colombian passports, the RPD was concerned with respect to her evidence regarding the need for her to care for her father in Colombia. It observed that Ms. Galindo Camayo’s father (who was a permanent resident of Canada) was actually in Canada during one of the periods that Ms. Galindo Camayo was in Colombia, purportedly caring for him there, and that he had visited Canada on numerous other occasions. The RPD further noted that Ms. Galindo Camayo claimed that her father had stayed in Colombia rather than come to Canada with the rest of his family, as he did not want to impose a burden on his family. It found, however, that this assertion was undermined by the fact that her father’s conduct regularly exposed Ms. Galindo Camayo to a dangerous situation in Colombia, thus imposing a significant burden on her.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-9", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 25–28", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Notwithstanding its concerns with respect to Ms. Galindo Camayo’s evidence on this point, the RPD did not find in clear and unmistakeable terms that her evidence lacked credibility: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.). Thus, the facts the RPD had to work with were those presented by the parties, and the case turned solely on whether the facts met the requirements of section 108.\n\nIn the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 means. I will return to these assertions later on in these reasons.\n\nThe RPD thus found that the Minister had established that Ms. Galindo Camayo had acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016. The Minister had further established that Ms. Galindo Camayo had intended by her actions to reavail herself of Colombia’s protection as contemplated by paragraph 108(1)(a) of IRPA, and that she had in fact done so.\n\nConsequently, the RPD allowed the Minister’s application for cessation and Ms. Galindo Camayo’s protection claim was deemed to have been rejected.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-10", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 29–31", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court was satisfied that the RPD had reasonably found that while Ms. Galindo Camayo’s acquisition of her Colombian passports was involuntary, her subsequent use of them to return to Colombia and to travel to other countries was voluntary. The Federal Court further found that the RPD had reasonably relied on the presumption of reavailment—both with respect to Ms. Galindo Camayo’s intention to reavail, and whether she actually had reavailed. The RPD also observed that the presumption of reavailment arises when a protected person acquires, renews, or uses a passport issued by their country of nationality.\n\nHowever, the Federal Court observed that the presumption of reavailment is a rebuttable one. The RPD thus had to consider whether Ms. Galindo Camayo had rebutted the presumption in this case. The Federal Court identified the question for determination as being whether the RPD had reasonably considered Ms. Galindo Camayo’s subjective intent to reavail and her efforts to obtain private security to protect her during her visits to Colombia as evidence that could rebut the presumption of reavailment.\n\nThe Federal Court noted that the outcome in each cessation case will be largely fact-dependent. However, by interpreting Ms. Galindo Camayo’s use of her passport as satisfying all three essential and conjunctive elements of the reavailment test (voluntary, intentional, and actual reavailment), no room was left for Ms. Galindo Camayo to demonstrate that despite her acquisition and use of her Colombian passport, she did not intend to avail herself of the protection of the state. In other words, intention in the cessation context cannot be based solely on intending to complete the underlying act itself; one also has to understand the consequences of one’s actions.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-11", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 32–36", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As can be seen, the Federal Court developed its own view of section 108 and how it should operate, and then applied it to the RPD’s decision. In so doing, it departed from its role as a reviewing court and delved into issues that were for the RPD to consider.\n\nIn the end result, the Federal Court granted Ms. Galindo Camayo’s application for judicial review, certifying the three questions identified at the beginning of these reasons.\n\nAs noted earlier, the first of the questions certified by the Federal Court is no longer in issue. The second question was not appropriate for certification in its original form, as its premise does not fully accord with the facts of this case.\n\nIt will be recalled that the second question certified by the Federal Court was: If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? [my emphasis]\n\nIt is undisputed that Ms. Galindo Camayo did not just use her Colombian passport to travel to third countries, but that she also used it to travel to Colombia on five separate occasions. Consequently, I would first reformulate this question as follows: Can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection?", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-12", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 37–39", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is well established that the certification requirement in subsection 74(d) of IRPA is to serve as a control on the types of cases that can be placed before this Court. However, once a question is certified for the consideration of this Court, this Court is entitled to deal with all of the issues that arise in the appeal: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 28; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at para. 50.\n\nOften, as here, the central issue before the reviewing court is whether the RPD’s decision was reasonable. In an appeal from a decision of the Federal Court in an application for judicial review, this Court’s task is to determine first, whether the Federal Court identified the appropriate standard of review, and second, whether it properly applied that standard: Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47. This has often been described as requiring that this Court “step into the shoes” of the Federal Court judge, and focus on the administrative decision. This is the approach to be followed even where the Court is dealing with questions of general importance that have been certified by the Federal Court: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44 (Kanthasamy SCC).\n\nI understand the parties and the interveners to agree that the Federal Court correctly identified reasonableness as the standard to be applied in reviewing the RPD’s cessation findings. The focus is therefore on the way that the Federal Court applied the reasonableness standard to the RPD’s decision.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-13", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 40–41", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the fact that we have certified questions before us gives rise to an awkward situation. Certified questions generally raise questions of law, including, as in this case, questions of statutory interpretation. However, the questions, as phrased by the Federal Court, require a yes or no answer. This invites correctness review by this Court. That said, as described above, this Court is required to engage in reasonableness review on questions of statutory interpretation. This creates the possibility that, in some cases, this Court may find the RPD’s interpretation of a statutory provision to be reasonable, yet this Court may say something entirely different in providing its own view of the matter in answering the certified question—something that the Supreme Court expressly tells us not to do: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 83 (Vavilov SCC), citing Delios v. Canada (Attorney General), 2015 FCA 117 at para. 28.\n\nThis Court raised this awkward situation—the misfit between answering the certified question properly and conducting reasonableness review—in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paragraphs 30 to 37. One solution suggested by this Court in Kanthasamy was to regard the Court’s need to answer certified questions as a statutory indication that correctness should be the standard of review. This solution would seem to gain greater credence now that the Supreme Court has held that statutory standards can have a bearing on the standard of review: Vavilov SCC at paras. 34-35.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-14", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 42–44", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, the Supreme Court subsequently confirmed that certified questions are not decisive of the standard of review, and that reasonableness should remain the standard of review applied by this Court: see Kanthasamy SCC, above at paras. 43-44. The Supreme Court appeared to recognize that this effectively renders the answer to the certified question mere surplusage, relegating the role of such questions to fulfilling a gatekeeping function.\n\nThis situation was replicated in Vavilov. The certified question in Vavilov v. Canada (Minister of Citizenship and Immigration), 2017 FCA 132 posed a yes-no question. This Court conducted a reasonableness review of the administrative decision but gave a precise answer, akin to a correctness review answer, to the question. In dismissing the appeal, the Supreme Court in effect ratified how this Court approached the certified question.\n\nThe potential misfit between reasonableness analysis and the definitive correct answer required by a certified question can, however, be avoided if the Federal Court were to formulate certified questions in a manner that asks whether a particular statutory interpretation or approach is reasonable. In this case, the second and third questions, as stated, call for a correctness response. I would therefore amend them to ask whether the particular statutory interpretation or approach suggested by the question is or is not reasonable.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-15", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 45–47", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Consequently, I have reformulated the second and third questions as follows: (2) Is it reasonable for the RPD to rely on evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? (3) Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nThe Supreme Court stated in Vavilov that “[r]easonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law”: Vavilov SCC, above at para. 82.\n\nReasonableness review involves both an assessment of the outcome of the case and of the reasoning process leading to that outcome: Vavilov SCC, above at para. 83. The Supreme Court further affirmed that it is not sufficient for the outcome of a decision to be justifiable. Where reasons are required, the decision must also be justified by the decision maker to those to whom the decision applies: Vavilov SCC, above at para. 86.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-16", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 48–49", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Vavilov teaches that reasons “must not be assessed against a standard of perfection” and that administrative decision makers should not be held to the “standards of academic logicians”: Vavilov SCC, above at paras. 91, 104. Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 25 (Newfoundland Nurses); Vavilov SCC, above at para. 128. Nor are they required to “make an explicit finding on each constituent element, however subordinate, leading to [their] final conclusion”: Newfoundland Nurses, above at para. 16.\n\nThat said, reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable”: Vavilov SCC, above at para. 81. The principles of justification and transparency thus require that administrative decision makers’ reasons “meaningfully account for the central issues and concerns raised by the parties”: Vavilov SCC, above at para. 127. The failure of a decision maker to “meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”: Vavilov SCC, above at para. 128. As a result, “where reasons are provided but they fail to provide a transparent and intelligible justification ... the decision will be unreasonable”: Vavilov SCC, above at para. 136.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-17", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 50", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention: Vavilov SCC, above at para. 133. The failure to grapple with the consequences of a decision should thus be considered: Vavilov SCC, above at para. 134, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-18", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 51–52", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this case, the seriousness of the impact of the RPD’s decision on Ms. Galindo Camayo increases the duty on the RPD to explain its decision. Specifically: a) The loss of refugee or protected person status unquestionably has serious consequences for the affected individual and persons like her, and legislative changes have made those consequences harsher in the last decade. In the past, protected persons who became permanent residents and who were then subject to cessation findings were able to maintain their permanent resident status in Canada. However, with changes brought about by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, sections 18 and 19, this is no longer the case. b) Moreover, a cessation finding cannot be appealed to either the Immigration Appeal Division or the Refugee Appeal Division of the Immigration and Refugee Board: IRPA, subsections 63(3) and 110(2). Individuals whose refugee protection has been ceased are also barred from seeking a Pre-removal Risk Assessment or an application for permanent residence on humanitarian and compassionate grounds for at least one year: IRPA, sections 25(1.2)(c)(i), 40.1, 46(1)(c.1), 63(3), 101(1)(b), 108(3), 110(2), and 112(2)(b.1). They are also inadmissible to Canada for an indeterminate period: IRPA, subsection 40.1(2) and paragraph 46(1)(c.1), and are subject to removal from Canada “as soon as possible”: IRPA, subsection 48(2).\n\nWhere, as here, the administrative decision maker has to deal with issues of statutory interpretation, certain additional considerations must be kept in mind by both the administrative decision maker and the reviewing court.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-19", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 53–55", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, the administrative decision maker must deal with any statutory interpretation issues by examining the text, context and purpose of the relevant provisions. Its analysis need not be the sort of formalistic statutory interpretation exercise that a court would perform: Vavilov SCC, above at paras. 92 and 119; Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at para. 39. Due allowance must be made for the fact that Parliament has given the responsibility to interpret the statutory provisions to an administrative decision maker, not a court, and certainly not to the reviewing court.\n\nSecond, in conducting reasonableness review, a reviewing court must be on guard not to engage in what is called “disguised correctness” review. It should not interpret the statutory provision itself and then use its own interpretation as a yardstick to measure the interpretation reached by the administrative decision maker: Delios, above at para. 28; Mason, above at para. 12. Reviewing courts can adopt specific techniques to avoid doing this: Mason, above at paras. 15-20, citing Hillier v. Canada (Attorney General), 2019 FCA 44 at paras. 13-17.\n\nThird, largely in pre-Vavilov jurisprudence, the Federal Court has offered interpretations of section 108 that shed light on when cessation under section 108 will be warranted. While in some cases, decisions of the Federal Court disagree with each other, it must again be remembered that under Vavilov, the Federal Court is not the body that interprets section 108. Rather, it is restricted to the role of a reviewing court.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-20", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 56–58", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, the leading interpretations of section 108 offered by the Federal Court that are relevant to the case at hand should be considered and assessed by the RPD, with supporting reasoning. As a general matter, judicial interpretations of statutory provisions bind the RPD unless the RPD can distinguish them or explain why a departure from them is warranted.\n\nIn the end result, in cases where the administrative decision maker has to consider the proper meaning of a statutory provision, the reviewing court must be satisfied that the administrative decision maker is “alive [either implicitly or explicitly] to [the] essential elements” of text, context and purpose and has touched on at least “the most salient aspects of the text, context [and] purpose”: Vavilov SCC, above at paras. 120-122; Mason, above at para. 42.\n\nIn my view, the decision of the RPD was not reasonable. As set out above, many questions arise as to the proper interpretation of section 108 of IRPA. The RPD simply stated its own view of what section 108 requires, without any real analysis. In broad terms, it set out the text of section 108, fastened onto the Refugee Handbook, and then asserted its own views of what section 108 requires, without considering the text, context and purpose of section 108. It also failed to analyze and consider the Federal Court’s jurisprudence in order to see whether its decision was legally constrained in any way. It then stated its conclusion on various issues, but did not provide a sufficient pathway of reasoning to explain how it got there.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-21", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 59", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In saying this, I recognize that due allowance must be made for the fact that the RPD is an administrative decision maker, often staffed by lay people, with its own way of dealing with and articulating legal issues. That said, even affording that allowance to the RPD, it fell short of the mark in this case.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-22", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 60", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 of IRPA means. However, it adopted these views without conducting any statutory interpretation analysis. Examples include the following: (a) The RPD rejected Ms. Galindo Camayo’s claim that she was unaware of the potential consequences of using her Colombian passport. Noting that ignorance of the law was no excuse, the RPD observed that Ms. Galindo Camayo was an educated, sophisticated adult who could have sought information about the steps that she needed to take to secure her status in Canada. At root here was the bare assertion that ignorance of the law is no excuse under section 108, an assertion adopted without any statutory interpretation analysis. (b) Referring to Ms. Galindo Camayo’s evidence that she had engaged private security to protect her while she was in Colombia, the RPD stated that Ms. Galindo Camayo knew enough about the threats or harm that she faced in that country to hire private security to accompany her while she was there. According to the RPD, this indicated that Ms. Galindo Camayo recognized the dangers associated with travel to Colombia. However, the RPD never explains what the legal relevance of this was for the analysis under section 108. An interpretation of section 108 in light of its text, context and purpose would have assisted in this regard. (c) The RPD noted that refugee protection lasts only as long as the reasons for fearing persecution in the country of nationality persist. It accepted that merely obtaining a Colombian passport may not, by itself, be evidence of an individual’s intent to use it. However, Ms.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-23", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 60–61", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Galindo Camayo’s repeated use of her Colombian passport to visit Colombia and other countries was an indication that she intended to travel under the protection of the Colombian government and that she intended to reavail herself of the protection afforded her by her Colombian passport. However, the leap from merely carrying a Colombian passport to a finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unexplained. The RPD’s reasoning implies some undisclosed and unexplained understanding of what “intention” means, and by extension, an undisclosed and unexplained interpretation of section 108 of IRPA. (d) Finally, insofar as actual reavailment was concerned, the RPD found that Ms. Galindo Camayo’s years of travel to third countries on Colombian passports (where she could seek the assistance of the Colombian government if something went wrong), and her repeated trips to Colombia for reasons that were neither necessary nor compelling, demonstrated that she had actually reavailed herself of Colombia’s protection. This involved an unexplained determination of what falls within or outside section 108, and, more particularly, the meaning of the elements of intention, voluntariness and reavailment.\n\nKey to the assessment of the reasonableness of the RPD’s decision is whether it could rely on evidence of a refugee’s lack of subjective knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by her country of nationality has intended to avail herself of that state’s protection. On this point, there is jurisprudence in the Federal Courts that constrains the RPD’s decision-making in this area.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-24", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 62–64", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It will be recalled that the first element of the test for cessation relates to the voluntariness of the individual’s actions. The RPD found that Ms. Galindo Camayo did not act voluntarily when she obtained and renewed her Colombian passports, but that she did act voluntarily when she used those passports to return to Colombia. No issue has been taken with respect to this latter finding. The question for the RPD then was whether Ms. Galindo Camayo intended by her actions to reavail herself of Colombia’s protection.\n\nAs noted earlier, there is a presumption that refugees who acquire and travel on passports issued by their country of nationality to travel to that country or to a third country have intended to avail themselves of the protection of their country of nationality. This is because passports entitle the holder to travel under the protection of the issuing country. This presumption is even stronger where refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, they are also entrusting their safety to governmental authorities upon their arrival.\n\nAs the Federal Court observed in Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), 2011 FC 1346, “[r]eavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to return to places where their personal security is in jeopardy”: at para. 8.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-25", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 65–67", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Constraining case law from the Federal Court, suggests, however, that the presumption is a rebuttable one. The onus is on the refugee to adduce sufficient evidence to rebut the presumption of reavailment: Canada (Minister of Citizenship and Immigration) v. Nilam, 2015 FC 1154 at para. 26; Li v. Canada (Minister of Citizenship and Immigration), 2015 FC 459 at para. 42.\n\nThe RPD should therefore have carried out an individualized assessment of all of the evidence before it, including the evidence adduced by the refugee as to her subjective intent, in determining whether the presumption of reavailment has been rebutted in this case.\n\nMs. Galindo Camayo testified that she was not aware that using her Colombian passport to travel to Colombia and elsewhere could have consequences for her immigration status in Canada. The RPD rejected this claim, not because Ms. Galindo Camayo was not credible, but because it found that ignorance of the law was not a valid argument. The RPD noted that Ms. Galindo Camayo was an educated and sophisticated individual who could have sought information as to the requirements that she had to uphold in order to maintain her status in Canada. With respect, this misses the point.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-26", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 68–70", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "If it were acting reasonably, at this point in its analysis, the RPD should have considered not what Ms. Galindo Camayo should have known, but rather whether she did subjectively intend by her actions to depend on the protection of Colombia. Having failed to find that Ms. Galindo Camayo’s testimony on this point lacked credibility, the RPD is deemed to have accepted her claim that she did not know that using her Colombian passport to return to Colombia and to travel elsewhere could result in her being deemed to have reavailed herself of Colombia’s protection, and that this was not her intent.\n\nThe Minister contends that the cessation provisions of IRPA would be stripped of any meaning if it was sufficient for an individual faced with a cessation application to simply state that they did not know that their actions could put their status in Canada in jeopardy. Not only did the Federal Court explicitly reject this argument, it also overstates the issue.\n\nAn individual’s lack of actual knowledge of the immigration consequences of their actions may not be determinative of the question of intent. It is, however, a key factual consideration that the RPD must either weigh in the mix with all of the other evidence, or properly explain why the statute excludes its consideration.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-27", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 71–74", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In order for it to make a reasonable decision, the RPD was required to take account of the state of Ms. Galindo Camayo’s actual knowledge and intent before concluding that she had intended to reavail herself of Colombia’s protection. I agree with the Federal Court that without this analysis, the RPD’s conclusion on reavailment was not a defensible outcome based on the constraining facts and law, and that it was thus unreasonable: Cerna v. Canada (Minister of Citizenship and Immigration), 2015 FC 1074 at paras. 18-19; Mayell v. Canada (Minister of Citizenship and Immigration), 2018 FC 139 at paras. 17-19.\n\nThe RPD also conflated the question of voluntariness with that of intention to reavail and this led, in part, to an unreasonable decision. Much of the RPD’s analysis of the intention issue is taken up with an examination of the reasons cited by Ms. Galindo Camayo for returning to Colombia. I agree with Ms. Galindo Camayo that the question of whether one intended to reavail oneself of the protection of one’s country of origin has nothing to do with whether the motive for travel was necessary or justified: Federal Court decision at para. 31.\n\nKey to the assessment of the reasonableness of the RPD decision is whether it could rely on evidence that Ms. Galindo Camayo took measures to protect herself against her agent of persecution while she was in Colombia to rebut the presumption of reavailment.\n\nAccording to Ms. Galindo Camayo, her family engaged the services of professional security guards to protect her on each of her trips to Colombia, and documentary evidence from security companies was provided to support her evidence in this regard.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-28", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 75–78", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The RPD appears to have accepted Ms. Galindo Camayo’s evidence on this point. It found however that while she might not have been fully aware of the reasons why her family had fled Colombia, Ms. Galindo Camayo knew enough about the dangers associated with travel to Colombia to engage private security personnel to accompany her while she was there.\n\nGiven that the discussion with respect to Ms. Galindo Camayo’s use of private security takes place in the section of the RPD’s reasons dealing with intention, it appears that the RPD understood this evidence to support its conclusion that by travelling to Colombia, Ms. Galindo Camayo intended to reavail herself of that country’s protection.\n\nI agree with Ms. Galindo Camayo that this was an unreasonable finding: the evidence with respect to her use of private security while she was in Colombia speaks not to her intention to entrust her protection to Colombia, but is, rather, to the opposite effect. It is evidence of Ms. Galindo Camayo’s ongoing subjective fear of the situation in Colombia, and her lack of confidence in the ability of the state to protect her.\n\nOnce again, Ms. Galindo Camayo’s evidence on this point was not necessarily determinative of the issue of intent, and it was open to the RPD to reject it. However, it had to at least consider it properly and, if it found it not to be probative or persuasive, to explain why that was the case. Its failure to do so in this case is a further reason for concluding that the RPD’s decision was unreasonable.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-29", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 79–81", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before concluding this portion of these reasons, I would note that the RPD appears to have considered Ms. Galindo Camayo’s use of her passport to travel to Colombia as satisfying all three elements of the test for reavailment (voluntary, intentional, and actual reavailment). This is evident from paragraph 22 of its reasons, where it found that Ms. Galindo Camayo’s use of her Colombian passport for travel was voluntary. Similarly, at paragraph 31 of its reasons the RPD found that Ms. Galindo Camayo’s use of her Colombian passport showed her intention to travel under the protection of Colombia, and paragraph 34 of its reasons, where the RPD found that Ms. Galindo Camayo’s use of her Colombian passport to travel to Colombia and elsewhere was evidence of actual reavailment. This approach left little room for Ms. Galindo Camayo to demonstrate that even though she had used her Colombian passport for travel, she did not intend to avail herself of the protection of that country.\n\nThis case represents the first opportunity that our Court has had to deal with a cessation case since the Supreme Court’s decision in Vavilov. As such, the RPD may benefit from our guidance in this area. It would also be unfortunate if we remitted this case for redetermination and the RPD was to repeat some of the errors that occurred in this case, potentially leading to the “endless merry-go-round of judicial reviews and subsequent reconsiderations” that the Supreme Court cautioned against in Vavilov: above, at para. 142.\n\nIt should be noted, however, that in providing this guidance, the Court is not recommending or suggesting any outcome one way or the other in relation to the cessation application involving Ms. Galindo Camayo. The merits of the redetermination are for the RPD to determine.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-30", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 82–83", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted earlier, the RPD’s reasons on the redetermination need not involve a microscopic examination of everything that could possibly be said on the matter. There need only be a reasoned explanation concerning the relevant evidence and key issues, including the key arguments made by the parties: Sexsmith v. Canada (Attorney General), 2021 FCA 111 at para. 36.\n\nMoreover, as the Federal Court observed in this case, the outcome in each cessation proceeding will be largely fact-dependent. I further agree with the submission of the intervener, United Nations High Commissioner for Refugees, that the test for cessation should not be applied in a mechanistic or rote manner. The focus throughout the analysis should be on whether the refugee’s conduct—and the inferences that can be drawn from it—can reliably indicate that the refugee intended to waive the protection of the country of asylum.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-31", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, in dealing with cessation cases, the RPD should have regard to the following factors, at a minimum, which may assist in rebutting the presumption of reavailment. No individual factor will necessarily be dispositive, and all of the evidence relating to these factors should be considered and balanced in order to determine whether the actions of the individual are such that they have rebutted the presumption of reavailment. The provisions of subsection 108(1) of IRPA, which operate as a constraint on the RPD in arriving at a reasonable decision: Vavilov SCC, above at paras. 115-124; The provisions of international conventions such as the Refugee Convention and guidelines such as the Refugee Handbook, as international law operates as an important constraint on administrative decision makers such as the RPD. Legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with ... the values and principles of customary and conventional international law”: Vavilov SCC, above at para. 114, citing R. v. Hape, 2007 SCC 26 at para. 53; R. v. Appulonappa, 2015 SCC 59 at para. 40; see also IRPA, paragraph 3(3)(f). The severity of the consequences that a decision to cease refugee protection will have for the affected individual. Where the impact of a decision on an individual's rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov SCC, above at paras. 133-135; The submissions of the parties. The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully engage with the central issues and the concerns raised by the parties: Vavilov SCC, above at paras.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-32", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "127-128; The state of the individual’s knowledge with respect to the cessation provisions. Evidence that a person has returned to her country of origin in the full knowledge that it may put her refugee status in jeopardy may potentially have different significance than evidence that a person is unaware of the potential consequences of her actions; The personal attributes of the individual such as her age, education and level of sophistication; The identity of the agent of persecution. That is, does the individual fear the government of her country of nationality or does she claim to fear a non-state actor? Evidence that a person who claims to fear the government of her country of nationality nevertheless discloses her whereabouts to that same government by applying for a passport or entering the country may be interpreted differently than evidence with respect to individuals seeking passports who fear non-state actors. In this latter situation, applying for a passport or entering the country will not necessarily expose the individual to their agent of persecution. This may be especially so when all the individual has done is apply for a passport: applying for a passport may have little bearing on the risk faced by a victim of domestic violence, for example, or her level of subjective fear; Whether the obtaining of a passport from the country of origin is done voluntarily; Whether the individual actually used the passport for travel purposes.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-33", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "If so, was there travel to the individual’s country of nationality or to third countries? Travel to the individual’s country of nationality may, in some cases, be found to have a different significance than travel to a third country; What was the purpose of the travel? The RPD may consider travel to the country of nationality for a compelling reason such as the serious illness of a family member to have a different significance than travel to that same country for a more frivolous reason such as a vacation or a visit with friends; What the individual did while in the country in question; Whether the individual took any precautionary measures while she was in her country of nationality. Evidence that an individual took steps to conceal her return, such as remaining sequestered in a home or hotel throughout the visit or engaging private security while in the country of origin, may be viewed differently than evidence that the individual moved about freely and openly while in her country of nationality; Whether the actions of the individual demonstrate that she no longer has a subjective fear of persecution in the country of nationality such that surrogate protection may no longer be required; and Any other factors relevant to the question of whether the particular individual has rebutted the presumption of reavailment in a given case. · The frequency and duration of the travel;", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-34", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 85", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For these reasons, I would dismiss the appeal. I would answer the certified questions and, in the case of the second and third questions, the questions as reformulated, as follows: (1)Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? This question no longer needs to be answered. (2)Is it reasonable for the RPD to rely upon evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? Yes. (3)Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection? Yes. \"Anne L. Mactavish\" J.A. “I agree. David Stratas J.A.” “I agree. Marianne Rivoalen J.A.”", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-501244-1", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 1–4", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal by the Attorney General of Canada from a decision of the Canadian International Trade Tribunal (CITT), reported as Best Buy Canada Ltd., 2019 CanLII 110846 (CA CITT), 2019 CarswellNat 14479 (WL Can) [Best Buy (CITT 2019)]. In that decision, the CITT classified television stands imported by the respondent, Best Buy Ltd., as “parts” of televisions, under tariff item No. 8529.90.90 of the schedule to the Customs Tariff, S.C. 1997, c. 36.\n\nThe CITT decision under appeal was itself a reconsideration of an earlier CITT decision, reported as Best Buy Canada Ltd., 2017 CanLII 149295 (CA CITT), 22 T.T.R. (2d) 57 [Best Buy (CITT 2017)]. Canada appealed the 2017 decision to this Court, which remitted the matter back to the CITT, Canada v. Best Buy Canada Ltd., 2019 FCA 20, 2019 CarswellNat 168 (WL Can) [Best Buy (FCA 2019)], which in turn maintained its original result. Canada once again appeals the CITT’s decision.\n\nThis appeal raises the question of whether this Court may review a CITT decision for issues other than questions of law, contrary to the wording of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). In my view, subsection 67(3) and section 68 of the Customs Act preclude this Court from reviewing CITT decisions for errors of fact or mixed fact and law that are not so egregious as to rise to the level of errors of law.\n\nCanada alleges the CITT both erred in law, and in applying the law to the facts of the case. I am not convinced that the CITT made an error of law. Further, given my conclusion that this Court may only review CITT decisions on questions of law, I would accordingly dismiss the appeal.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-2", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 5–8", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The goods in issue, which I refer to as “the Best Buy stands”, are metal and wooden models of floor stands for flat-panel televisions. On October 2, 2014, Best Buy requested an advance ruling from the CBSA on the tariff classification of the goods. Best Buy, relying on an earlier CITT decision dealing with similar floor stands, Sanus Systems v. President of the Canada Border Services Agency (8 July 2010), AP-2009-007 (CITT), 2010 CarswellNat 5288 (WL Can), 14 T.T.R. 576 [Sanus Systems], sought to have the goods classified under tariff item No. 8529.90.90.\n\nPrior to issuing its advance ruling on the Best Buy stands, the CBSA, in August 2015, filed a request with the World Customs Organization (WCO) Harmonized System Committee (the “WCO Committee”) for guidance on the tariff classification of audio-visual carts designed to hold televisions and other audio-visual apparatuses. The request informed the WCO Committee of the CITT ruling in Sanus Systems and set out the CBSA’s position that the goods in Sanus Systems were not “parts” of televisions but instead “furniture”.\n\nThe WCO Committee held a vote and decided to direct the Secretariat to prepare Classification Opinions classifying television stands like those at issue in Sanus Systems as “furniture”, not “parts” of televisions. The Classification Opinions were published on June 1, 2016. I refer to the stands covered by these Classification Opinions as “the WCO stands”.\n\nIn July 2016, the CBSA provided Best Buy with its advanced ruling on the goods in issue, classifying them as “furniture” under tariff heading No. 94.03, in accordance with the Classification Opinions.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-3", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 9–11", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Best Buy appealed to the CITT, which allowed the appeal: Best Buy (CITT 2017). Canada appealed the CITT’s decision to this Court, which allowed the appeal and remitted the matter back to the CITT for reconsideration.\n\nIn remitting the matter, this Court relied on section 11 of the Customs Tariff, which reads: Interpretation Interprétation de la liste des dispositions tarifaires 11 In interpreting the headings and subheadings, regard shall be had to the Compendium of Classification Opinions to the Harmonized Commodity Description and Coding System and the Explanatory Notes to the Harmonized Commodity Description and Coding System, published by the Customs Co-operation Council (also known as the World Customs Organization), as amended from time to time. 11 Pour l’interprétation des positions et sous-positions, il est tenu compte du Recueil des Avis de classement du Système harmonisé de désignation et de codification des marchandises et des Notes explicatives du Système harmonisé de désignation et de codification des marchandises et de leurs modifications, publiés par le Conseil de coopération douanière (Organisation mondiale des douanes).\n\nThis Court found that, “[a]lthough the Opinions were relevant because they dealt with goods that were materially the same as those before the Tribunal, the Tribunal failed to consider or have regard to the Opinions as required under the Customs Tariff”: Best Buy (FCA 2019) at para. 5. It thus remitted the matter with instructions to the CITT to have regard to the Opinions in its redetermination.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-4", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 12–13", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The CITT maintained its position that the WCO Classification Opinions, which dealt with wheeled audio/video equipment floor stands, were not relevant in the classification of the Best Buy stands, the latter being television-specific, non-wheeled floor stands. It reiterated that, “[h]aving had regard to the classification opinions, the Tribunal finds that they cover goods of different form and function than the goods at issue”: Best Buy (CITT 2019) at para. 14. This was material because, in the CITT’s view, the goods in issue were more like cases and cabinets than those covered by the classification opinion. The explanatory notes to heading No. 85.29, which captures “Parts suitable for use solely or principally with the apparatus of headings 85.25 to 85.28”, explicitly includes cases and cabinets specialized to receive televisions: Best Buy (CITT 2019) at para. 14.\n\nFinally, the CITT repeated at length its rejection, as set out in its original decision, of Canada’s argument that “parts” of televisions must be articles essential to the functionality of the devices: Best Buy (CITT 2019) at paras. 19–20. It therefore maintained its original decision, namely that the floor stands are “parts” of televisions, rather than “furniture”.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-5", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 14–15", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Canada launched this appeal in September 2019, prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. It also filed its written submissions in March 2020, prior to this Court��s decisions in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 (WL Can) [Neptune]; and Canada (Attorney General) v. Impex Solutions Inc., 2020 FCA 171, 2020 CarswellNat 4332 (WL Can) [Impex]. In Vavilov, the Supreme Court of Canada changed how courts must treat appeals from administrative tribunals. In Neptune and Impex, this Court addressed how these changes impact the way it must conduct appeals from CITT decisions under section 68 of the Customs Act, which are limited to questions of law. In Neptune, Rennie J.A. posited that “[t]here may nonetheless be judicial review of questions of fact or mixed fact and law from which a legal issue cannot be extricated by virtue of general principles and section 28 of the Federal Courts Act”: at para. 15. However, in both Neptune and Impex, this Court found that the issues before it were questions of law that fell within the ambit of section 68. Rennie J.A.’s comments in Neptune were therefore obiter dicta.\n\nIn its written submissions, Canada argued that it is a question of law whether the CITT had sound reason to, in this case, disregard the WCO Classification Opinion. The standard of review on an appeal from a CITT decision on a question of law, by way of section 68 of the Customs Act, is now correctness: Vavilov at para. 37; Neptune at para. 18; Impex at para. 32.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-6", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 16–19", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, Canada also argued that the CITT’s application of the law to the facts was unreasonable. Canada argued that the CITT considered irrelevant factors in reaching its conclusion about the inapplicability of the WCO Classification Opinion: namely, the practices and procedures of the WCO Committee; and the opinion of an interior designer who testified as a witness. Canada acknowledged that these were, in both instances, issues of mixed fact and law.\n\nIn light of the obiter comments made in Neptune, Canada requested, and was granted, time after the hearing of this case to make additional submissions on the issue of whether matters other than questions of law are reviewable and, if so, via what procedure and under which standard of review?\n\nIn its supplementary submissions, Canada argued that judicial review of CITT decisions on questions of mixed fact and law that do not rise to the level of an error of law is available via an application for judicial review, under paragraph 28(1)(e) of the Federal Courts Act, R.S.C. 1985, c. F-7. In its supplementary submissions, Best Buy agreed with this proposition. Both parties agreed that the standard of review on such questions of fact or mixed fact and law is reasonableness.\n\nHowever, Canada also acknowledged that the Supreme Court’s decision in Vavilov has now cast doubt on this proposition and, performing a role it submitted was somewhat akin to that of an amicus curiae, Canada presented arguments against this Court accepting jurisdiction to review CITT decisions on the basis of errors of fact or mixed fact and law that are not sufficiently egregious to rise to the level of questions of law as contemplated by the operation of subsection 67(3) and section 68 of the Customs Act.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-7", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 20–21", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, before addressing the issue of whether the CITT’s application of the law to the facts was reasonable, this Court must first decide whether it has jurisdiction to review the CITT’s decision on such questions of mixed fact and law.\n\nFinally, if this Court did conclude that it has jurisdiction to review CITT decisions for errors beyond the scope of the appeal as set out in section 68 of the Customs Act, it would also be required to determine how, as a matter of procedure, this review can be conducted. Generally, past practice in statutory appeals under the Customs Act was to review the CITT decision for reasonableness on the whole: see e.g. Igloo Vikski Inc. v. Canada (Border Services Agency), 2014 FCA 266, 2014 CarswellNat 4603 (WL Can) at para. 2 [Igloo Vikski (FCA)], reversed but not on that point, Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski (SCC)]. Both parties agreed that, after Vavilov, a separate application for judicial review would be necessary. Thus if this Court were to decide it could review the CITT decision for errors beyond those contemplated by section 68 of the Customs Act, it would also have to determine how to deal with the procedural challenge caused by requiring separate proceedings for review of matters of law—under section 68 of the Customs Act—and on any of the other grounds for review under the Federal Courts Act.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-8", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 22–24", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the CITT did not err in law by declining to classify the Best Buy stands in accordance with the WCO Classification Opinion. Further, the only mechanism for review of a CITT decision made under the Customs Act is the section 68 appeal. Given that appeals under section 68 are limited in scope to questions of law, I am of the view that CITT tariff classification decisions may not be interfered with unless an extricable legal error warrants this Court’s intervention. Given my conclusion on this issue, it is unnecessary to deal with the procedural problems conducting such a review would pose.\n\nCanada contends that the CITT, by considering the process by which the WCO produces a classification opinion, made an error in law when it decided the Opinions do not apply in this case. According to Canada, interpreting and applying WCO Explanatory Notes and Classification Opinions are questions of law, reviewable on a correctness standard.\n\nIn my view, Canada has failed to demonstrate that the appeal raises an extricable legal question to which this Court must provide the correct answer. While I agree that interpretation of how the different provisions of the Customs Tariff interact will generally raise questions of law (see e.g. Impex at para. 40; Neptune at para. 18), the actual application of the provisions to a set of facts is more likely to be a matter of mixed fact and law: Impex at para. 34, citing Canada (Border Services Agency) v. Decolin Inc., 2006 FCA 417, 356 N.R. 284 at para. 41. In other words, whether a specific product fits the description of a tariff item number, in light of its physical characteristics and relevant Explanatory Notes and Classification Opinions, will generally not be a question of law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-9", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 25–26", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is possible that a reviewable error of law may be extricated from a CITT finding of fact or application of law to the facts. For example, findings of fact must generally be supported by evidence, and making a finding of fact without any supporting evidence has often been characterized as an error of law, as opposed to one of fact: see e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, 24 D.L.R. (4th) 453 at p. 604, cited with approval in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at para. 25. Thus an egregiously incorrect and unsupported finding of fact would be reviewable on a section 68 appeal.\n\nThe CITT’s application of the relevant law may also be reviewable for an error of law if, in applying a legal rule or principle, it effectively misinterpreted or undermined the rule or principle. As the Supreme Court, Iacobucci J.A., put it in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 39: […] After all, if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-10", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 27", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, this Court’s analysis of one of the issues raised in Impex illustrates this principle at work with regard to a CITT tariff classification decision. The case dealt with whether certain disposable shoe coverings were plastic or textile. This Court determined that, in misapplying the tariff schedule, the CITT had effectively erred in law. The relevant portion reads as follows: [41] I am also satisfied that the appellant’s second ground of appeal, which concerns the Tribunal’s alleged failure to consider Note 1 to Chapter 39 upon determining that the goods in issue were articles of plastics, raises a question of law. The appellant contends that this Note directed the Tribunal to determine first whether the goods’ constituent material was a textile defined in Section XI, and more particularly a nonwoven defined in the Explanatory Notes to heading No. 56.03, before even considering whether Chapter 39 covered the goods in issue. In refusing or in neglecting to do so, the argument goes, the Tribunal overlooked a crucial analytical step prescribed by Note 1 to Chapter 39. [42] This second issue requires the Court to determine whether Note 1 to Chapter 39 entails that the goods’ constituent material must be assessed in light of Section XI before turning to Chapter 39. In other words, the issue is whether the logic and structure of the Tariff Schedule require that a constituent material that combines textiles and plastics be assessed in a specific order. If they do, then it is an error of law not to assess that material in that order. This, again, is a question of law reviewable on a standard of correctness.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-11", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 28–29", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus in Impex, the issue was not that the CITT allegedly erred in weighing certain factors against each other, or in unreasonably exercising a discretionary power conferred to it. Instead, this Court concluded that the CITT’s reasoning evidenced a misapprehension of the requirements of the tariff schedule—in other words, of the applicable law. Had this Court not intervened, the proper functioning of the legal rule—the interplay of the different sections of the tariff schedule involved—would have been undermined. The appellant successfully demonstrated that the CITT’s tariff classification decision on the merits raised an extricable question of law, reviewable on a section 68 appeal.\n\nHowever, in this case, no question of law was properly raised. A question of law is defined by its substance, not its form: see Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 49–50 [Emerson Milling]. In substance, this appeal is not about whether the CITT must have regard to WCO Classification Opinions, as that question is settled: see Best Buy (FCA 2019). Section 11 of the Customs Tariff requires the CITT have regard to WCO Classification Opinions when determining a tariff classification: see also Best Buy (FCA 2019).", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-12", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 30–31", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "What having proper regard entails is also settled. In its earlier decision in this matter, this Court, in remitting the matter to the CITT, summarized what this provision requires, at paragraph 4: The phrase “regard shall be had” under section 11 of the Customs Tariff entails that, while not binding, opinions of the WCO must “at least be considered” in determining the classification of goods imported into Canada (Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 at para. 8, [2016] 2 S.C.R. 80 [Igloo Vikski]). Similarly, this Court has examined the definition of “regard” in the context of section 11 of the Customs Tariff, and found that it means “to consider, heed, take into account, pay attention to, or take notice of” (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131 at para. 13, [2004] F.C.J. No. 615 [Suzuki]). Having “regard” further entails that the Tribunal should respect WCO opinions unless there is “sound reason” to do otherwise (Suzuki at para. 13). The Tribunal may ultimately disagree with the Opinions but it must consider them and provide a sound reason as to why it chose not to follow them.\n\nI would reiterate that, generally, the CITT should respect and follow WCO Classification Opinions. This means that the CITT should seek to, if possible, make tariff classifications that are in harmony with WCO Classification Opinions, rather than in opposition to them.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-13", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 32–33", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, where the CITT is of the view that such a harmonious classification is not possible, the CITT is not bound to follow the WCO Classification Opinions: see Best Buy (FCA 2019) at para 4; (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131, 319 N.R. 299 at paras. 14–17 [Suzuki]. The language of section 11 makes the WCO Explanatory Notes and Classification Opinions factors that must be weighed in the tariff classification process, not binding criteria. It must balance the WCO Classification Opinions and Explanatory Notes against any other factors it considers relevant. For example, it might weigh WCO Classification Opinions against apparently contradictory expert evidence: see e.g. Suzuki at para. 17. The appropriate weight to place on a WCO Classification Opinion will vary depending on the specific facts of the case and, most importantly, the characteristics of the goods in issue as compared to those covered by relevant Classification Opinions.\n\nAs a matter of law, the CITT is entitled to classify a product contrary to a WCO Classification Opinion when it has “sound reason” to do so: Best Buy (FCA 2019) at para. 4; Suzuki at para. 14. Whether it has sound reason in any specific case is unlikely to be a question of law but instead, as is the case here, one that can only be answered with reference to a particular set of facts. In other words, it will generally be a question of mixed fact and law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-14", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 34–35", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, Canada argues that the CITT erred in law by taking into account WCO internal processes as part of its assessment of the WCO opinions. The CITT did indeed cite portions from its decision in Mattel Canada Inc., 2019 CanLII 110865 (CA CITT), 2019 CarswellNat 14487 (WL Can), that describes how the WCO Classification Opinions are created: Best Buy (CITT 2019) at para. 9. However, in my view, it is open to the CITT to consider, in having “regard” to WCO Classification Opinions, how or why those opinions were produced. For example, it might be appropriate for the CITT to take notice of how goods reviewed by the WCO for a Classification Opinion came before the WCO, so that the CITT can assess whether the goods it is classifying are sufficiently similar to those covered by the WCO Classification Opinion. As the CITT noted, the Classification Opinions themselves are short, technical descriptions of products, and without further context—such as the background leading to publication of a specific Classification Opinion—the CITT might not be able to properly have “regard” to an opinion. Indeed, I am reticent to read into section 11 of the Customs Tariff strict limits on what the CITT can consider in reaching a tariff classification. In my view, it is important that this specialized tribunal be able to consider the disputes that come before it in context, which might include taking notice of the WCO’s deliberation processes.\n\nIn sum, Canada has failed to convince me that the CITT, by taking into account the deliberative process the WCO Committee used to create the Classification Opinions, made an error of law in its tariff classification decision.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-15", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 36", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This Court has, in the past, reviewed CITT decisions for issues of mixed fact and law. For example, in HBC Imports (Zellers Inc.) v. Canada (Border Services Agency), 2013 FCA 167, 446 N.R. 352 [HBC Imports], this Court reviewed, and upheld, the reasonableness of the CITT’s classification of a type of toboggan. In framing the issue before it, this Court noted: [4] The question of whether the Astra Sled should be classified under heading 95.03 requires an interpretation of the expression “other toys” as used in this heading and the application of this interpretation to the Astra Sled. This is a question of mixed fact and law which requires an interpretation of the Tribunal’s own statute. The standard of review is reasonableness, which means that deference is to be given to the Tribunal (Canadian Tire Corp. Ltd. v. President of the Canada Border Services Agency, 2011 FCA 242, at paragraph 4; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654).", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-16", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 37–38", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "While other decisions are not so explicit, in many cases this Court has effectively reviewed the CITT’s decision on the merits, assessing the reasonableness of its application of the law to the facts before it, without identifying an extricable legal principle at issue: see e.g. Canada (Attorney General) v. RBP Imports Inc., 2018 FCA 167 at paras. 3–5 [RBP Imports]; Containerwest Manufacturing Ltd. v. Canada (Border Services Agency), 2016 FCA 110 at para. 12 [Containerwest Manufacturing Ltd.]; Igloo Vikski (FCA) at para. 2. In these decisions, this Court did not distinguish between questions of fact, of law and of mixed fact and law, but instead reviewed the CITT’s decision on a tariff classification for its reasonableness on the whole.\n\nHowever, these decisions came before the Supreme Court of Canada’s decision in Vavilov, in which it noted the following, at paragraph 8: […] While the application of the reasonableness standard is grounded, in part, in the necessity of avoiding “undue interference” in the face of the legislature’s intention to leave certain questions with administrative bodies rather than with the courts (see Dunsmuir, at para. 27), that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-17", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 39–40", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Vavilov, the Supreme Court of Canada reiterated that respect for legislative intent is the “polar star” of judicial review: at para. 33, citing C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 149. It also held that lower courts should no longer effectively ignore the language of statutory appeal mechanisms and treat appeals launched under them as, essentially, applications for judicial review: Vavilov at para. 45. Instead, courts are now required “to give effect to the legislature’s institutional design choices to delegate authority through statute”: Vavilov at para. 36.\n\nIn my view, the Supreme Court’s dicta in Vavilov provides sufficient basis for this Court to refocus its approach in dealing with statutory appeals under the Customs Act in order to more accurately reflect Parliament’s intent. In its post-Vavilov decisions on appeals under the Customs Act, this Court has not had to decide the issue of whether it lacks jurisdiction to review CITT decisions for errors falling outside the apparent scope of the section 68 statutory appeal, as these cases turned on questions of law: Neptune at para. 18; Impex at para. 40. This case, in which Canada has, in my view, failed to identify an extricable legal issue, but nonetheless also challenges the reasonableness of the CITT’s classification decision on the merits, requires this Court to first decide whether it has jurisdiction to conduct such a review.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-18", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 41", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "At first blush, the language of the Customs Act would seem to preclude this Court from reviewing CITT decisions via any procedure other than the statutory appeal provided in that Act. As the statutory appeal is only available on questions of law, this Court would appear to lack jurisdiction to review CITT decisions for any errors other than purely legal ones. The relevant sections of the legislation read as follows: Appeal to the Canadian International Trade Tribunal Appel devant le Tribunal canadien du commerce extérieur 67 (1) A person aggrieved by a decision of the President made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the President and the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given. 67 (1) Toute personne qui s’estime lésée par une décision du président rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel auprès du président et du Tribunal dans les quatre-vingt-dix jours suivant la notification de l’avis de décision. […] […] Judicial review Recours judiciaire (3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-19", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 41", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "(3) Le Tribunal canadien du commerce extérieur peut statuer sur l’appel prévu au paragraphe (1), selon la nature de l’espèce, par ordonnance, constatation ou déclaration, celles-ci n’étant susceptibles de recours, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues à l’article 68. […] […] Appeal to Federal Court Recours devant la Cour d’appel fédérale 68 (1) Any of the parties to an appeal under section 67, namely, 68 (1) La décision sur l’appel prévu à l’article 67 est, dans les quatre-vingt-dix jours suivant la date où elle est rendue, susceptible de recours devant la Cour d’appel fédérale sur tout point de droit, de la part de toute partie à l’appel, à savoir : (a) the person who appealed, a) l’appelant; (b) the President, or b) le président; (c) any person who entered an appearance in accordance with subsection 67(2), may, within ninety days after the date a decision is made under section 67, appeal therefrom to the Federal Court of Appeal on any question of law. c) quiconque a remis l’acte de comparution visé au paragraphe 67(2). Disposition of appeal Issue du recours (2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing. (2) La Cour d’appel fédérale peut statuer sur le recours, selon la nature de l’espèce, par ordonnance ou constatation, ou renvoyer l’affaire au Tribunal canadien du commerce extérieur pour une nouvelle audience. [Emphasis added] [Nos soulignés]", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-20", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 42–43", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Read together, the plain and ordinary meaning of the provisions indicate Parliament’s intent to limit judicial review of CITT decisions to statutory appeals on questions of law: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27. Subsection 67(3) purports to limit the ability of a court to interfere with a CITT decision except via the statutory appeal mechanism provided for in section 68. Subsection 68(1) only allows for appeal on questions of law.\n\nThis meaning is supported by the legislative context. The Customs Act provides for de novo appeal before the CITT of a CBSA tariff classification decision. Prior to this appeal, the CBSA conducts two levels of internal review: Customs Act, ss. 59–60. By the time a tariff classification matter reaches this Court, any contested factual issues have thus already been subject to multiple levels of review. Similarly, the application of the law to the facts—the tariff classification of the product—has also first been decided by the CBSA, reviewed internally, and then reviewed de novo by the CITT. What the statutory scheme contemplates for this Court to review are contested legal issues, and not factual ones.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-21", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 44", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Further support for this interpretation can be found by comparing the appeal procedure provided for in the Customs Act to similar procedures for review of other types of CITT decisions. The CITT is a quasi-judicial tribunal created by the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.). It decides a wide variety of matters brought before it pursuant to several different statutory authorities. Appeals to the CITT from certain CBSA decisions are available, for example, under subsection 61(1) of the Special Import Measures Act, R.S.C. 1985, c. S-15 [SIMA]. Subsection 61(3) makes these decisions final and conclusive except where subject to appeal, and subsection 62(1) makes appeals to this Court available on questions of law. Notably absent in the SIMA is the language used in the Customs Act to expressly eliminate judicial review of all other CITT decisions made under the SIMA. Indeed, unlike the Customs Act, the SIMA explicitly provides for launching an application for judicial review of certain decisions on grounds other than provided for in the statutory appeal mechanism. For example, section 76 of the SIMA provides: Application for judicial review Contrôle judiciaire 76 Subject to subsection 61(3) and Part I.1 or II, an application for judicial review of an order or finding of the Tribunal under this Act may be made to the Federal Court of Appeal on any of the grounds set out in subsection 18.1(4) of the Federal Courts Act. 76 Sous réserve du paragraphe 61(3) et des parties I.1 et II, les ordonnances ou conclusions du Tribunal prévues à la présente loi sont sujettes au contrôle judiciaire de la Cour d’appel fédérale pour l’un des motifs prévus au paragraphe 18.1(4) de la Loi sur les Cours fédérales.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-22", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 45–46", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The availability of judicial review is also dealt with at section 96.1 of the SIMA, which enumerates at length the types of CITT decisions and issues subject to judicial review, as opposed to being reviewable under that legislation’s statutory appeal mechanism.\n\nAs Canada points out, the explicit reference in the SIMA to the availability of judicial review of CITT decisions made under that Act can be contrasted with Parliament’s explicit statement that CITT decisions made under subsection 67(3) of the Customs Act are “not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.” In my view, the comparison further supports the plain and ordinary interpretation of the meaning of the Customs Act, which is that judicial review outside the statutory appeal mechanism, and thus for questions of mixed fact and law, is unavailable. If Parliament’s institutional design choices are to be respected, factual issues and issues of mixed fact and law for which no legal question can be extracted must not be subject to review by this Court.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-23", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 47–48", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This conclusion runs contrary to the position taken on this issue by both parties. Canada argues, and Best Buy agrees, that paragraph 28(1)(e) of the Federal Courts Act provides this Court with broad jurisdiction to review CITT decisions for matters not subject to the statutory appeal mechanism. In other words, all matters not captured by the term “question of law”. In support of this proposition, Canada argues that the “rule of law” requires judicial review be available to guard against unreasonable CITT rulings on matters of fact or mixed fact and law. As a subsidiary argument, Canada points to past jurisprudence of this Court recognizing the possibility of judicial review of CITT decisions, and indeed of other tribunals subject to similar limited scope appeal clauses, for matters falling outside the scope of the statutory appeal.\n\nI have already described why I view this Court’s past practice of reviewing these matters on a reasonableness standard, within the procedural vehicle of a section 68 appeal, as of limited import in determining how it should conduct statutory appeals under the Customs Act going forward. Vavilov implemented “a holistic revision of the framework for determining the applicable standard of review”: at para. 143. The Supreme Court explicitly noted that past cases dealing with “the effect of statutory appeal mechanisms […] will necessarily have less precedential force” after Vavilov: at para. 143. In my view, the past cases in which mixed questions were reviewed, under section 68, on a reasonableness standard, effectively ignored subsection 67(3) and Parliament’s institutional design choice. Vavilov makes clear that this past practice should no longer be sustained going forward. Furthermore, in truth the jurisprudence leans both ways.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-24", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 49–50", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted above, in some cases this Court has, either explicitly or implicitly, reviewed the CITT’s application of the law to the facts: see e.g. HBC Imports at para. 4; RBP Imports at paras. 3–5; Containerwest Manufacturing at para. 12; Igloo Vikski (FCA) at para. 2.\n\nHowever, in others, this Court limited its inquiry to whether a reviewable error of law occurred, and declined to review the CITT’s findings of fact or application of law to those facts. In Star Choice Television Network Inc. v. Canada (Commissioner of Customs and Revenue), 2004 FCA 153, 2004 CarswellNat 1004 (WL Can) at para. 9, Strayer J.A. noted that questions of law were “the only matter properly in issue on this appeal”, before concluding the CITT had not made a reviewable error of law. In Deputy Canada (Minister of National Revenue) v. Yves Ponroy Canada, 2000 CanLII 15801 (FCA), 25 Admin L.R. (3d) 101 at para. 36, Sharlow J.A. wrote that “[u]nder subsection 67(3) and subsection 68(1) of the Customs Act, customs tariff classification decisions of the CITT are not subject to judicial review and are subject to appeal to this Court only on questions of law”, before concluding that the CITT had not made a reviewable error of law. And indeed, in one of its handful of decisions on a section 68 appeal, the Supreme Court noted in obiter that, by virtue of subsection 67(3) of the Customs Act, “CITT findings of fact are immune from appellate review”: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100 at para. 26.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-25", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 51–53", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus in my view, past jurisprudence does not provide a persuasive argument as to why the clear meaning of the Customs Act should be disregarded and judicial review of CITT decisions be permitted outside of the section 68 statutory appeal mechanism. Given that that mechanism is restricted in scope to matters of law, I am of the view that this Court may only intervene in a CITT decision if it discloses a reviewable error of law.\n\nDoes this conclusion offend the “rule of law”? Canada argues that it is the constitutional role of the courts to supervise the executive branch of government, and that in order to be fulfilled, this role requires full review of administrative decisions on all matters. In other words, reasonableness review of administrative decisions is constitutionally entrenched, and cannot be limited by legislative act.\n\nIt is true that the Supreme Court, in Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 [Crevier], held that the legislature cannot completely oust judicial review via use of a privative clause. It is worth reviewing the facts of that oft-cited case, and briefly unpacking the Supreme Court’s holding.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-26", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 54", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Crevier dealt with the question of whether a provincial legislature can entirely eliminate judicial review of an administrative tribunal empowered to make findings of fact and rule on matters of law. The administrative scheme at issue was set up under Québec’s Professional Code, R.S.Q. 1977, c. C-26, which at the time granted the Professions Tribunal judicial powers to hear appeals of disciplinary decisions made by the different professional orders’ Disciplinary Committees. The Professions Tribunal was composed of judges of the Provincial Court, i.e. not judges appointed by the federal government under section 96 of what was then still the British North America Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91, since reprinted in R.S.C. 1985, Appendix II., No. 5. At the time, article 194 of the Professional Code purported to completely eliminate recourse to the Superior Courts for review of Professions Tribunal decisions. It read: 194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities. 194. Aucun des recours extraordinaires prévus aux articles 834 à 850 du Code de procédure civile ne peut être exercé ni aucune injonction accordée contre les personnes visées à l’article 193 agissant en leur qualité officielle.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-27", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 55", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The articles of the Code of Civil Procedure referred to dealt with applications for judicial review. The most relevant provision was article 846, which read: 846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases: 846. La Cour supérieure peut, à la demande d’une partie, évoquer avant jugement une affaire pendante devant un tribunal soumis à son pouvoir de surveillance ou de contrôle, ou reviser le jugement déjà rendu par tel tribunal: 1. when there is want or excess of jurisdiction;. 1. dans le cas de défaut ou d’excès de juridiction; 2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect; 2. lorsque le règlement sur lequel la poursuite a été formée ou le jugement rendu est nul ou sans effet; 3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done; 3. lorsque la procédure suivie est entachée de quelque irrégularité grave, et qu’il y a lieu de croire que justice n’a pas été, ou ne pourra pas être rendue; 4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice 4. lorsqu’il y a eu violation de la loi ou abus de pouvoir équivalant à fraude et de nature à entraîner une injustice flagrante. However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-28", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 55–56", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Toutefois, ce recours n’est ouvert, dans les cas prévus aux alinéas 2, 3 et 4 ci-dessus, que si, dans l’espèce, les jugements du tribunal saisi ne sont pas susceptibles d’appel. [Emphasis added, italics in original] [Nos soulignés]\n\nThe Supreme Court struck down article 194 on the basis that it had the effect of constituting the Professions Tribunal a section 96 court. Chief Justice Laskin, writing for the Court, held the following: It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. (Crevier at pp. 236–37 [Emphasis added])", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-29", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 57–58", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Crevier has since oft been cited for the proposition that a legislature cannot completely oust judicial review: see e.g. Vavilov at para. 24; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 31. As Stratas J.A., for this Court, recently framed it, “[p]ut positively, Crevier stands for the proposition that there must always be at least some prospect or degree of review”: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 2021 CarswellNat 1003 at para. 102 [Canadian Council for Refugees]. This is indeed all it stands for. It does not imply that the legislature cannot limit or preclude judicial review of administrative decisions for certain types of issues: see e.g. Canadian Council for Refugees at para. 102, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402 at 333; Capital Regional District v. Concerned Citizens of British Columbia et al., [1982] 2 S.C.R. 842, 141 D.L.R. (3d) 385; Vavilov at paras. 45–52. On the contrary, as the emphasized portion of the above cited passage makes clear, Crevier actually explicitly states that the legislature may oust judicial review on issues not touching jurisdiction.\n\nIt is also clear from the above cited passage that, at the time, the Supreme Court considered “questions of jurisdiction” to be a more narrow and important category of question than “questions of law”. In my view, it follows that, according to the reasoning espoused in Crevier, a statutory scheme that allows for appeal of an administrative decision on a question of law meets the constitutional threshold articulated in Crevier.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-30", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 59–60", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court in Crevier was pre-occupied with the lack of any appeal from a decision of the Professions Tribunal to a Superior Court. Comparing to the legislative scheme at issue in this case, it is clear that the Supreme Court’s holding in Crevier would limit Parliament’s ability to completely insulate the CITT from any Superior Court review. In the Customs Act, Parliament has not attempted to do so. Instead, it has provided an appeal mechanism, and simply limited what can be appealed to questions of law. Similar to the Code of Civil Procedure at the time Crevier was decided, the Federal Courts Act makes clear that the traditional judicial review remedies provided for in that Act—injunction, certiorari, prohibition, etc.—are unavailable when a statutory appeal from an administrative decision is provided for: Federal Courts Act, s. 18.5.\n\nIn my view, Crevier supports the position that Parliament may restrict judicial review to questions of law. A statutory provision having this effect, such as section 68 of the Customs Act, meets any threshold established in Crevier. To hold otherwise would be to eliminate any possibility that Parliament could, via statute, restrict the ambit of judicial review of administrative action. What purpose would the specific provisions of the Customs Act, and many other federal statutes that restrict review, serve if recourse to the Courts could always be had on all issues under the general provisions of section 18 and section 28 of the Federal Courts Act?", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-31", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 61–63", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is also why, in my view, the case of Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC], does not bind this panel into allowing a judicial review to proceed in this matter. In PSAC, the Federal Public Sector Labour Relations and Employment Board (the Board) argued that, by virtue of a privative clause found in its constituting statute, its decisions were not amenable to review for errors of law, erroneous findings of fact or any other departures from law: PSAC at paras. 10–12. This Court rejected that argument, holding that the Board’s decisions were reviewable for their reasonableness: PSAC at para. 34.\n\nThere are two factors that differentiate PSAC from this case. Firstly, the legislation at issue in PSAC did not provide for a statutory appeal, and only provided for a limited judicial review on the grounds of jurisdictional or procedural fairness issues, or fraud: PSAC at paras. 10–11. According to the Board, this meant that it could not be reviewed on matters of law.\n\nThere is of course, no such argument being made here. The CITT’s decisions are clearly reviewable for errors of law, and on a correctness basis. Thus the limits on the availability of judicial review being contemplated in this case are significantly more narrow than those argued for by the Board and rejected by this Court, in PSAC. I am not convinced that the reasoning and outcome in PSAC would have been the same had the Board’s statute provided for full review of its decisions on matters of law. I view the very different nature of the review mechanisms at issue in PSAC and in this case as sufficient to distinguish the cases.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-32", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 64–65", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Were the cases not distinguishable, PSAC was nevertheless decided before the Supreme Court of Canada’s decision in Vavilov. As noted above, Vavilov explicitly required lower courts rethink their approach to dealing with statutory appeals, with a view to giving effect to legislative intent. In my view, this major change in the law since PSAC, a change which goes to the heart of the issue in this application, is sufficient to warrant this panel to treat the issue as a novel one, and not consider itself bound by the panel’s holding in PSAC.\n\nFurther, in apparent contrast to the dicta in PSAC, this Court, in recent decisions, found it lacked jurisdiction to review administrative decisions for factual and policy issues where the applicable statutes limited appeals to questions of law and jurisdiction: Emerson Milling at para. 26; Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 (WL Can) at paras. 69, 78 [Bell Canada].", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-33", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 66–67", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is true that, in both those cases, the applicable legislation also provided for appeals to the Governor in Council: Canada Transportation Act, S.C. 1996, c. 10, s. 40; Telecommunications Act, S.C. 1993, c. 38, s. 12(1). The availability of this other mechanism for appeal played a part in this Court’s reasoning declining jurisdiction: Emerson Milling at para. 12; Bell Canada at paras. 48–50. However, I do not think that the Governor in Council review provided for in those schemes fulfills a factual review function. I am of the view that the validity of a statutory provision limiting appeals to this Court on questions of law is not conditional upon the availability of Governor in Council review for matters falling outside the scope of the appeal. As such, I do not see how this Court can review CITT decisions for issues of fact or mixed fact and law on an application for judicial review pursuant to the Federal Courts Act. In my view, subsection 67(3) and section 68 of the Customs Act preclude the possibility of such an application. While paragraph 28(1)(e) of the Federal Courts Act contemplates applications for judicial review of CITT decisions, as noted above, the CITT makes decisions pursuant to a variety of statutory authorities and some, such as the SIMA, do allow for judicial review. The Customs Act expressly does not. I would not disregard this expression of Parliament’s intent.\n\nGiven that Canada acknowledges that its second line of argument on the merits attacks the CITT’s application of the law to the facts, I see no need to deal comprehensively with that argument. Indeed, doing so would be engaging in the exact judicial review exercise I have just concluded this Court is precluded from conducting.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-34", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 68–71", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Given my conclusion that judicial review is unavailable outside of the statutory appeal mechanism provided for in the Customs Act, there is no need for me to address how a party might conduct both an appeal and an application for judicial review of the same decision. However, it is worth noting that if this Court was to accept the position of the parties and find that judicial review was available pursuant to sections 18 and 28 of the Federal Courts Act, under a separate and parallel application, it is clear that such a process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone. This would fly in the face of the intent of Parliament to simplify and expedite the review of the highly technical decisions of the CITT.\n\nThus, in my view, the only procedure by which this Court may review a CITT decision is an appeal made under section 68 of the Customs Act.\n\nI would dismiss the appeal, with costs. “D. G. Near” J.A. GLEASON J.A. (Concurring Reasons)\n\nI have had the opportunity of reading the reasons of my colleague, Near, J.A. in draft, and, while I concur in result, I arrive at my conclusion by a slightly different path. As is more fully articulated below, it is my view that a slightly broader range of factual determinations made by the CITT may be reviewed by this Court than my colleague would permit, although such review would require the filing of an application for judicial review. While this conclusion does not affect the result in this appeal, it is, in my opinion, nonetheless important to leave the door open to this sort of review, which might be determinative in a future case under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp) or another statute containing a privative clause.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-35", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 72–73", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, I reach the same conclusion as my colleague in terms of the disposition of this appeal as the slightly broader basis for factual review that I contemplate is not available in an appeal. Moreover, even if an application for judicial review had been filed, the sorts of factual errors alleged by the appellant in the instant case would provide no basis for intervention. Thus, like my colleague, I would dismiss this application for judicial review.\n\nI commence my analysis of these issues by noting that I agree that this Court’s decision in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 [Neptune] does not settle the issue of whether factual determinations of the CITT may be reviewed by this Court as the issue was not central to the determination in that case. The comments made on the issue in Neptune are accordingly non-binding obiter dicta. The present case is the first time this issue has been squarely before this Court in the context of the CITT, although a very similar issue was before the Court recently in Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC] in the context of federal labour tribunals, where this Court reached an opposite conclusion from that of my colleague.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-36", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 74", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For my colleague, the dicta of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov] constitute an invitation to this Court to breathe new life into the privative clause in the Customs Act, such that it forecloses judicial any review of factual determinations, other than what my colleague qualifies as “egregious” factual determinations, or those for which there is no evidence, which would constitute errors of law and thus could be raised in a statutory appeal under section 68 of the Customs Act. With respect, I disagree with that approach for several reasons.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-37", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 75", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, I do not believe that the dicta in Vavilov support this reasoning, especially when one understands Vavilov in the context of how administrative law has developed in Canada and considers that the Supreme Court reconfirmed in Vavilov much of what it had earlier determined in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]. Second, my colleague’s approach is inconsistent with section 18.5 of the Federal Courts Act, R.S.C. 1985, c. F-7. Third, I believe that this issue was settled in PSAC, which is binding on this panel. Fourth, contrary to what my colleague suggests, I do not believe that this Court’s decisions in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 [Emerson Milling] and Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 [Bell Canada] mandate my colleague’s approach as the Court was not asked in either of those cases to rule on the availability of an application for judicial review as opposed to deciding on the bounds of a permissible appeal. In addition, there were important differences in the statutory context in Emerson Milling and Bell Canada. Finally, my colleague’s approach sits uncomfortably with how cases of this nature have been considered by this Court and the Supreme Court of Canada since Dunsmuir. I explore each of these points more fully below.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-38", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 76–78", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Turning first to the dicta in Vavilov, to put that case in context, it is useful to commence with a brief overview of how administrative law has developed over the last several decades, with particular focus on the availability of review for factual errors and the curial treatment of privative clauses. For it is only by understanding this context that one can appreciate the import of the decision in Vavilov.\n\nHistorically, review for factual errors made by administrative decision-makers was not available unless they fit into the category of jurisdictional error. However, legal errors made by administrative decision-makers were reviewable if they appeared on the face of the record. See Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada, 2009) (loose-leaf updated 2021, release 1), ch. 1 at 1-11 to 1-14.\n\nWith the growth of the administrative state, legislatures inserted privative clauses into many statutes in an attempt to shield the decisions of administrative decision makers from curial review. In the years following adoption of provisions like subsection 67(3) of the Customs Act, Canadian courts, including the Supreme Court of Canada, determined that privative clauses could not shield patently unreasonable administrative decisions from review because this would violate the rule of law, which could not allow such fundamentally flawed administrative decisions to stand. In order to provide a basis for judicial intervention, under the administrative law framework then in force, patently unreasonable decisions were characterized as instances where an administrative decision maker exceeded its jurisdiction.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-39", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 79", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Patently unreasonable decisions included those tainted both by patently unreasonable legal determinations and by patently unreasonable factual determinations. Legal determinations were patently unreasonable if they offered an interpretation that could not be rationally supported by the relevant legislation (see, e.g. C.U.P.E v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417, at 237). In the context of collective agreement provisions, a patently unreasonable interpretation was characterized as one the provisions could not reasonably bear (see e.g. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402, at 341). Factual determinations were characterized as being patently unreasonable where the evidence, viewed reasonably, was incapable of supporting the administrative decision-maker’s findings of fact (see, e.g. Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, 76 D.L.R. (4th) 389 [Lester] at 687).", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-40", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 80", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As concerns factual determinations, the starting point for the discussion of these principles in the Supreme Court’s jurisprudence of the era is the decision in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, 41 D.L.R. (3d) 6, one of the seminal cases enshrining the principle of deference in Canadian administrative law. There, the Supreme Court considered the ambit of review of determinations made by the Saskatchewan Labour Relations Board, whose decisions were protected by a strongly-worded privative clause. It stated as follows at 388-389: There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene. A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-41", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 80–82", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: Anisminic, Ltd. v. Foreign Compensation Commission et al.; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board, supra; R. v. Quebec Labour Relations Board, Ex p. Komo Construction Inc. [Footnotes omitted and emphasis added.]\n\nThe Supreme Court’s reference to “basing a decision on extraneous matters” and “failing to take relevant factors into account” can be read as encompassing factual matters.\n\nThe possibility of seriously erroneous factual determinations constituting patently unreasonable error was confirmed by the Supreme Court of Canada in its subsequent decision in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, 14 D.L.R. (4th) 289. There, the Supreme Court was faced with judicial review of a decision of a labour arbitrator, whose decision was protected by a privative clause. In concurring reasons, two judges who wrote separately for the Court, confirmed that a narrow range of factual errors were subject to review for being patently unreasonable.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-42", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 83", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Lamer, who wrote for two members of the Court, stated at 492-495: In principle, where there is a privative clause the superior courts should not be able to review errors of law made by the administrative tribunals. However, it is now settled that some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on the question of which errors of law result in the loss of jurisdiction. […] this Court has tended since Nipawin, supra, and C.U.P.E., supra, to avoid intervening when the decision of the administrative tribunal was reasonable, whether erroneous or not. In other words, only unreasonable errors of law can affect jurisdiction. […] In looking for an error which might affect jurisdiction, the emphasis placed by this Court on the dichotomy of the reasonable or unreasonable nature of the error casts doubt on the appropriateness of making, on this basis, a distinction between error of law and error of fact. In addition to the difficulty of classification, the distinction collides with that given by the courts to unreasonable errors of fact. An unreasonable error of fact has been categorized as an error of law. The distinction would mean that this error of law is then protected by the privative clause unless it is unreasonable. What more is needed in order that an unreasonable finding of fact, in becoming an error of law, becomes an unreasonable error of law? An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable. The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-43", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 83–84", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal. I hasten to add that the distinction between an error of law and one of fact is still entirely valid when the tribunal is not protected by a privative clause. Indeed, though all errors of law are then subject to review, only unreasonable errors of fact are, but no others.\n\nJustice Beetz, who wrote for the remaining members of the Court, noted at 480-481: Whatever the arbitrator's jurisdiction, strictly speaking, an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause. I cannot say that the arbitrator's award constituted such an abuse. [...] I am far from certain that I would have decided as the arbitrator did, but I also cannot say that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole. [emphasis added]", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-44", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 85", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The notion that certain types of serious factual errors will support intervention even in the face of a privative clause was again endorsed by the Supreme Court of Canada in Lester, where the Court again reviewed a decision of a labour board, whose decisions were protected by a privative clause. While holding that the board’s decision was patently unreasonable because there was no evidence to support that a successorship had occurred under a rational interpretation of the relevant provisions in the legislation, Justice McLachlin (as she then was) described the sort of factual error that might allow intervention under the patently unreasonable standard is the following way at 687: Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere. [emphasis added]", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-45", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 86", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, the Supreme Court again addressed the issue in the context of review of a decision of a labour arbitrator, that was protected by a privative clause. In overturning the arbitrator’s conclusion on the issue of just cause, Justice Cory, writing for the majority of the Court stated at paras. 41- 45 and 47- 48: 41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law. 42 Where a tribunal is interpreting a legislative provision, the test is: . . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, at p. 237. 43 A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear”:Bradco, supra, at p. 341. 44 It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell, 1979 CanLII 51 (SCC), [1980] 1 S.C.R. 245, at p. 277: . . .", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-46", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 86", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review. 45 When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”: Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644, at p. 669 per McLachlin J. [...] 47 In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law made by the tribunal. As Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1370, observed “[i]n some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it may be no less unreasonable but this can only be understood upon an in‑depth analysis.” In Lester, supra, this Court conducted a review of the record to determine if there was any evidence which could reasonably support a particular factual finding made by a labour relations board.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-47", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 86–87", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "48 Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings. [emphasis added]\n\nIt was against this backdrop that the provisions in the Federal Courts Act providing for judicial review of federally-regulated decision-makers were enacted. To a certain extent, they provided for review on a somewhat broader basis than that which was historically available at common law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-48", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 88", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Currently enshrined in sections 18, 18.1-18.5 and 28 of the Federal Courts Act, these provisions allow for judicial review by the Federal Court of Appeal (for the tribunals named in subsection 28(1) of the Federal Courts Act), or by the Federal Court (for all other federally-regulated administrative decision-makers), except where a statutory right of appeal is provided. Subsection 18.5 of the Federal Courts Act, which is of central importance to the issues before us, provides that access to judicial review is foreclosed only to the extent a right of appeal is present. It states: Exception to sections 18 and 18.1 Dérogation aux art. 18 et 18.1 18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-49", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 88", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-50", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 89", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Grounds for review are listed in subsection 18.1(4) of the Federal Courts Act, which provides: Grounds of review Motifs (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; (e) acted, or failed to act, by reason of fraud or perjured evidence; or e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; (f) acted in any other way that was contrary to law. f) a agi de toute autre façon contraire à la loi.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-51", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 90–92", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "With the growth in number and expertise of administrative decision-makers and the increasing complexity of questions remitted to them, the Supreme Court of Canada determined that, at least in certain instances, legal determinations made in the absence of a privative clause should be afforded deference. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 DLR (4th) 1 [Southam], building on its earlier decision in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385 [Pezim], the Supreme Court developed a third standard of review somewhere between correctness and patent unreasonableness, which has been termed reasonableness simpliciter. Such standard required that a decision withstand a somewhat probing examination. The Supreme Court held that the difference between a merely unreasonable and a patently unreasonable decision was in the immediacy or obviousness of the defect. If the defect was apparent on the face of the decision-maker’s reasons, then the decision was patently unreasonable. Conversely, if it took some significant searching or testing to find the defect, then the decision was unreasonable but not patently unreasonable.\n\nIn Southam, the new reasonableness simpliciter standard of review was applied to all aspects of a decision of the Competition Tribunal, including its determinations of mixed fact and law. The relevant legislation provided for a right of appeal to this Court on issues of law and, with leave, on issues of fact.\n\nPerhaps not surprisingly, the determination of which of three standards of review might apply and discernment of their respective content proved increasingly complex and much litigation was devoted to the point.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-52", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 93–95", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court of Canada developed the so-call “pragmatic and functional” analysis to assist in this discernment. As developed particularly in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, 95 N.R. 161, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222, 60 D.L.R. (4th) 193, this analysis required a reviewing court to consider several contextual factors to ascertain the applicable standard of review. These principally were: the presence or absence of a privative clause in the legislation creating the decision-maker; the expertise of the administrative decision-maker as compared to that of a court in respect of the point(s) in issue; the purpose of the statute conferring jurisdiction on the decision maker and of the provision(s) in issue; and the nature of the problem solved in the decision under review.\n\nIn Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme Court confirmed that the foregoing analysis applied to each of the determinations made by an administrative decision-maker. In result, different standards of review could, and frequently did, apply to different parts of a decision.\n\nThe increasing complexity of the requisite analysis and its concomitant impact on predictability and cost in judicial review matters gave rise to significant criticism, causing the Supreme Court of Canada to largely jettison and re-work the entire framework for judicial review in Dunsmuir.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-53", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 96–98", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Dunsmuir, the Supreme Court collapsed two of the three previous standards of review of patent unreasonableness and reasonableness simpliciter into a single deferential standard of review called reasonableness. Thus, post-Dunsmuir, there were and are but two standards of review: correctness and reasonableness.\n\nThe Supreme Court held in Dunsmuir that the reasonableness standard was presumptively applicable in most cases, but held that the presumption could be rebutted where the question fell into one of four defined categories or where the contextual factors enumerated in Pushpanathan might require selection of the correctness standard. The four categories for application of correctness set out by the Court in Dunsmuir were: (1) constitutional questions; (2) questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers; (3) questions of central importance to the legal system as a whole; and (4) what the majority termed “true questions of jurisdiction or vires”, which were said to encompass jurisdiction “in the narrow sense of whether or not the tribunal had the authority to make the inquiry” (at para. 59).\n\nThe single framework for review under the deferential reasonableness standard was defined in Dunsmuir as being concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process but also with assessment of whether a decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and applicable law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-54", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 99", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Notably, under Dunsmuir, the presence of a privative clause in a decision-maker’s constituent statute no longer limits the scope of the Court’s review to patent unreasonableness. Indeed, in Dunsmuir, the decision of the adjudicator under review was protected by a strongly-worded privative clause in s. 101(1) of the New Brunswick Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, which provided that “Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court”. The presence of this provision in the adjudicator’s constituent statute played no role in the Supreme Court’s analysis of whether the decision was reasonable. Instead, the Court applied its newly-formulated approach to reasonableness and overturned the adjudicator’s statutory interpretation.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-55", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In reaching its decision, the Supreme Court made two points of particular relevance for the present appeal. First, it noted that the sort of review it had fashioned under the newly-formulated reasonableness standard was required by rule of law principles and that judicial review is constitutionally guaranteed in Canada. At paragraphs, 27-31 Bastarache and Lebel, JJ., writing for the majority, stated as follows: [27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-56", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21. [30] In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-57", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted by Justice Thomas Cromwell, “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (“Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent. [31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-58", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 100–101", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier: Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38] See also D. J. Mullan, Administrative Law (2001), at p. 50.\n\nSecond, it was clear that the newly-formulated reasonableness standard applies to both legal and factual determinations made by an administrative decision-maker. Indeed, this is inherent in the formulation of the standard itself, which requires that a reasonable decision be defensible in light of both the applicable facts and law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-59", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 102–103", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsequent to the decision in Dunsmuir, courts, including this one and the Supreme Court of Canada, applied the newly-formulated reasonableness standard in judicial review of administrative decisions, including those where the decision was shielded by a privative clause (see, e.g. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; Igloo Vikski; PSAC and the various cases listed in the appendix to that decision).\n\nIn Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa], which was decided the year after Dunsmuir, the Supreme Court of Canada confirmed that the Dunsmuir formulation of reasonableness applies under the Federal Courts Act and that questions of law are subject to reasonableness review, despite the wording of paragraph 18.1(4)(c), which contemplates review for errors of law. The majority held that the paragraph merely listed the grounds of review as opposed to the standard of review to be applied to errors of law. As for questions of fact, however, both the majority and the minority held that paragraph 18.1(4)(d) of the Federal Courts Act sets out both the grounds of review and the parameters of what reasonableness requires for review of factual errors. The majority noted that it was “[… ] clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act” (at para. 46). Justice Rothstein, writing in dissent, concurred on this point.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-60", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 104–106", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is noteworthy that the decision of the Immigration Appeal Division that was the subject of review in Khosa was protected by a privative clause, albeit the clause was less broadly worded than the one in section 67 of the Customs Act. Subsection 162(1) of the Immigration and Refugee Protection Act provided that the Immigration Appeal Division had “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.\n\nOne further development of the case law of the Supreme Court of Canada in the wake of Dunsmuir, decided prior to Vavilov, merits mention, namely the decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 [Edmonton East]. There, the Supreme Court confirmed that the Dunsmuir reasonableness analysis applied to statutory appeals in addition to judicial review applications.\n\nWith this background in mind, it is now possible to turn to examine the decision of the Supreme Court of Canada in Vavilov.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-61", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 107", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Vavilov, the Supreme Court set out a revised framework applicable to judicial review in Canada, but, in so doing, confirmed that the “revised framework will continue to be guided by the principles underlying judicial review […] articulated in Dunsmuir [...]: that judicial review functions to maintain the rule of law while giving effect to legislative intent” (at para. 2). The Court also, with three exceptions, maintained the previous framework enshrined in Dunsmuir. More specifically, it confirmed that reasonableness is a single standard, that takes it colour from context, and that reasonableness is concerned both with the existence of justification, transparency and intelligibility within the decision‑making process and with assessment of whether a decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and applicable law. In Vavilov, the Court gave more definition to this formulation of the reasonableness standard, but did not overturn the fundamental approach set out in Dunsmuir.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-62", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 108", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In terms of the three changes to the previous framework wrought by Vavilov, the Supreme Court determined that the contextual factors from Pushpanathan (which, it will be recalled, included the presence of a privative clause) henceforth play no role in selection of the standard of review. Second, it abolished the category of so-called “true questions of jurisdiction”, which were previously held in Dunsmuir to give rise to correctness review. Following Vavilov, such questions are now instead subject to reasonableness review, just like most issues in a judicial review application. Thus, currently, unless a statute specifically sets out the applicable standard of review, reasonableness will be applied in judicial review of all questions except constitutional questions, questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers and questions of central importance to the legal system as a whole.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-63", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 109", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The third change to the previous framework for conduct of judicial review wrought by Vavilov concerns the approach to statutory appeals. The Court held that, absent statutory language to the contrary, statutory appeals henceforth will be subject to appellate as opposed to judicial review principles, thereby overturning its earlier holdings on the point, including in Edmonton East, Pezim and Southam. The standards from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 are accordingly now applicable to statutory appeals from administrative decisions. Thus, in a statutory appeal, errors of law are now subject to review under the correctness standard whereas, where an appeal is provided for factual issues, errors of fact or of mixed fact and law from which a legal issue cannot be extricated are subject to review for palpable and overriding error.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-64", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 110", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In so deciding, the majority of the Supreme Court held at paragraph 45 of Vavilov, that “The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of the court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding”. The majority reconfirmed this point at paragraph 52, where it noted: [...] statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. [emphasis added]", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-65", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 111–112", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, the Supreme Court determined that, as a matter of principle, the availability of limited appellate review does not foreclose the availability of judicial review. Indeed, such holding mirrors what subsection 18.5 of the Federal Courts Act already provides. This holding is important in the present case. While Supreme Court did not specifically address the issue now before us in Vavilov, it must have been aware that several statutes, like the Customs Act, which contain a limited right of appeal, also contain a privative clause. Thus, its failure to indicate that such a clause would bar access to judicial review is telling.\n\nMoreover, nowhere in Vavilov does the Supreme Court endorse the notion that privative clauses may bar access to judicial review or to review for particular sorts of issues. A complete bar on the availably of judicial review for any type of issue would offend the rule of law as the Supreme Court noted in Dunsmuir, a holding that was specifically endorsed in Vavilov at para. 24. Further, the Court in Dunsmuir and Vavilov did not overturn the previous decades-old case law determining that what were previously characterized as patently unreasonable factual errors, formerly called jurisdictional, remain reviewable, albeit now under the reasonableness standard.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-66", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 113–114", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "To the contrary, the Supreme Court specifically contemplates in Vavilov that factual issues may give rise to unreasonable decisions. In providing further guidance as to the conduct of reasonableness review and the characteristics of a reasonable decision, the Supreme Court in Vavilov elucidated that there are two types of flaws that may render a decision unreasonable: either a failure of rationality in the reasoning process, where reasons are given, or the untenable nature of the decision in light of the legal and factual constraints that bear on it (at para. 101).\n\nFactual issues may give rise to an unreasonable decision under either type of flaw. The majority indicated in respect of a failure of rationality in the reasoning process, quoting from Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 and Southam at paragraph 102 of its reasons in Vavilov, that a reviewing court “must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. Clearly, this contemplates a decision-maker’s treatment of factual issues.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-67", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 115–116", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Court likewise contemplated that failure to reasonably address factual issues might lead to an untenable result. The majority commented on this point as follows at paragraph 126: [126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.\n\nThus, under the reasonableness standard of review delineated in Vavilov, factual determinations can be the subject of review. In light of this, I do not believe that one can read the dicta in the case as endorsing the notion that privative clauses are to be henceforth read as barring access to judicial review for all factual issues. This is particularly so in light of the limited role afforded to privative clauses by the Supreme Court over the last several decades and the recognition by that Court that the rule of law requires review for factual errors, the most serious of which were formerly called jurisdictional. Such errors now come within the ambit of unreasonable errors.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-68", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 117", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This does not mean that privative clauses have been rendered meaningless. Rather, they are part of the relevant statutory framework – an important contextual factor in determining the parameters of a reasonable decision according to Vavilov and the case law of this Court – and such clauses highlight the deferential nature of reasonableness review for decisions falling within the ambit of the clauses. I do not believe there is any other way to reconcile the collapsing of the patent unreasonableness and reasonableness standards of review into a single standard of reasonableness other than to recognize that review is available under the reasonableness standard for what were formerly characterized as patently unreasonable errors, which include serious factual errors, even in the face of a privative clause.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-69", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This view is shared by Professor Paul Daly, who has written extensively on administrative law matters. In a blog post entitled “Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review” (17 November 2020), online (blog): Administrative Law Matters , he explained the following: Let me put the difficulty in stark terms. There is nothing, on the face of Vavilov, to prevent a legislature from eliminating reasonableness review. As the majority puts it, “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.” But the “rule of law” here means only that limited class of cases in which correctness review applies to allow the courts to furnish a final, definitive answer to a question in the interests of uniformity. As long as the courts are able to review constitutional questions, questions of central importance to the legal system or questions of overlapping jurisdiction for correctness, nothing seems to stand in the way of legislation to eliminate reasonableness review. This is not merely a theoretical difficulty. There are a couple of ways in which reasonableness review could be eliminated, directly or indirectly. In Alberta, s. 539 of the Municipal Government Act provides: “No bylaw or resolution may be challenged on the ground that it is unreasonable”. Meanwhile, in various provincial statutes, and, most famously, British Columbia, patent unreasonableness has been prescribed as the standard of review of some types of administrative action.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-70", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Indirectly, reasonableness review could be ousted by providing for a limited right of appeal. For example, the Federal Court of Appeal has interpreted various provisions relating to statutory appeals on issues of “law or jurisdiction” as excluding the consideration of factual matters. Where an appellate court whose jurisdiction is circumscribed in this way refuses to grant leave or finds that a matter raised by a party is outside the scope of the appeal clause, reasonableness review is unavailable. This would be a simple solution and would provide significant clarity. Here, however, I would invoke Einstein: everything should be made as simple as possible, but no simpler. Appearances, moreover, may be deceptive. On the face of it, Vavilov would permit legislative ouster of reasonableness review. But only on the face of it. Indeed, Hamlet springs to mind: “God hath given you one face, and you make yourself another.” First, in the same paragraph that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.” The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-71", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’” If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov. The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review. With respect, the insistence that correctness review – and only correctness review – must be constitutionally entrenched is, and has been, misplaced. Julius Grey put the point with admirable clarity in the mid-1980s: What Crevier does entrench is some degree of review. The courts will not interfere at the same moment on all issues or against all tribunals. However, they now clearly possess a constitutional right to step in when the bounds of tolerance are exceeded by any decision-maker. Clearly, the precise location of the bounds of tolerance is left to the court and that is quite consistent with the general trends in modern administrative law. In short, the “bounds of tolerance” are supplied in Vavilov by reasonableness review. Inasmuch as constitutional questions, questions of central importance to the legal system and questions of overlapping jurisdiction have a “constitutional dimension,” correctness review is also constitutionally entrenched.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-72", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Indeed, this description of the constitutional foundations of Vavilov provides an explanation for an otherwise mysterious passage in the majority reasons. Having established institutional design as a key, grounding concept in the selection of the standard of review, the majority considered limited rights of appeal – such as those restricted to questions of law or jurisdiction – and observed: “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.” If respect for institutional design choices is so important, why can unappealable aspects of decisions nonetheless be judicially reviewed? The answer is that reasonableness review is constitutionally entrenched. A limitation of a right of appeal cannot, constitutionally, effect the elimination of reasonableness review of aspects of a decision. How, then, should courts address direct and indirect limitations on reasonableness review post Vavilov? Consider first direct limitations, that is those imposed by eliminating grounds of review or specifying a deferential ground of review. Here, the legislative language can be taken as an indication that the decision-maker should benefit from a wider margin of appreciation. As was the case with privative clauses prior to Vavilov, they would not be enforced to the letter, but their spirit would be respected. Vavilovian reasonableness review is capacious enough to accommodate this solution.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-73", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Vavilov, the majority recognized that “the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” may differ from case to case, sometimes allowing “greater flexibility”, sometimes “tightly constraining the decision maker”. Where a ground of review has been eliminated, or patent unreasonableness specified as the standard of review, these statutory provisions can be taken as “language chosen by the legislature” to give “greater flexibility” to the decision-maker. In this way, reasonableness review is preserved and the constitutionally entrenched core minimum of judicial review safeguarded. This is a fairly simple solution, which takes advantage of the thick conception of reasonableness review set out in Vavilov, and provides crystalline clarity about the scope of judicial review. The second question, of indirect limitations, is slightly more complex. Where an appeal is limited to questions of law or jurisdiction, it is arguable that any issue relating to the “constitutional duty” to ensure that administrative decision-makers remain within the boundaries of their authority will fall within the appeal clause. Historically, this was certainly the case, as such clauses respected the constitutional boundaries set out in Crevier. However, the core constitutional minimum I have ascribed to reasonableness review includes matters which go beyond questions of law or jurisdiction.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-74", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 118–119", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For example, the harsh consequences a decision visits upon an individual as a matter of fact – perhaps leaving them homeless – would probably not fall within a limited appeal clause; this would be problematic, as it would limit the courts’ ability to police the boundaries of administrative decision-makers’ authority and ensure that exercises of state power are publicly justified, to exclude any such issues. Similarly, the responsiveness of a decision to the arguments of the parties and evidence presented is a key feature of Vavilovian reasonableness review but again would not necessarily come within the scope of a limited appeal clause. The contemporaneity requirement might also be in play in some cases, as on appeal a decision-maker may seek to defend its position by relying on documents and other material not referenced in its decision; on a statutory appeal, the court’s analysis will be on the correctness of the outcome, whereas on reasonableness review, the question for the court will be whether the reasons adequately justify the outcome. These considerations help to explain why the majority in Vavilov refused to accept that a limited appeal clause could oust judicial review of matters not falling within the clause. Doing so would be unconstitutional. [Footnotes omitted and emphasis added]\n\nThe foregoing approach, moreover, is consistent with section 18.5 of the Federal Courts Act, the statute that creates the right to judicial review before the Federal Courts. As noted, it provides that access to judicial review is barred only to the extent a right of appeal otherwise exists in respect of an issue.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-75", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 120–122", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The combined effect of this provision and the treatment of privative clauses in the case law of the Supreme Court of Canada leads to the conclusion that factual errors made by the CITT may be reviewed in the context of a judicial review application under the reasonableness standard. Conversely, errors of law are reviewable under the correctness standard in the context of a statutory appeal under section 68 of the Customs Act. Any overlap in proceedings could be addressed through joinder of an appeal with an application or other appropriate directions as might be required from time to time.\n\nI hasten to underline that the scope of review in respect of factual matters is limited, providing for intervention only in a narrow range of cases beyond those where there is a complete lack of evidence on a point. Thus, there should be relatively few cases where an overlap might occur.\n\nParagraph 18.1(4)(d) of the Federal Courts Act provides that erroneous factual findings may provide the basis for intervention only if the decision was based on them and if they were “made in a perverse or capricious manner or without regard to the material before” the decision maker. The statutory formulation of the test before the Federal Courts for unreasonable factual determinations is akin to what the Supreme Court said about the nature of unreasonable factual findings in Vavilov, where the majority noted at paragraph 126 that unreasonable factual determinations arise where the “… decision maker has fundamentally misapprehended or failed to account for the evidence before it”.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-76", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As concerns, more specifically, the case law interpreting paragraph 18.1(4)(d) of the Federal Courts Act, in Rohm & Haas Canada Limited v Canada (Anti-Dumping Tribunal) (1978), 22 N.R. 175, 91 D.L.R. (3d) 212, Chief Justice Jacket defined the notion of perversity as “willfully going contrary to the evidence” (at para. 6). As for the criteria of “capriciousness” or of the finding’s being made without regard to the evidence, such would include circumstances where there was no evidence to rationally support a finding, (see, e.g. Stelco Inc. v. British Steel Canada Inc., [2000] 3 FC 282 (C.A.), 20 Admin. L.R. (3d) 159 at para. 22) or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings. As noted by Justice Evans in the oft-cited Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), [1999] 1 FC 53, 157 F.T.R. 35 at paragraphs 14-17: [14] It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-77", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made \"without regard to the evidence\": see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), 1994 CanLII 3532 (FC), [1995] 1 F.C. 741 (F.C.T.D.). [15] The Court may infer that the administrative agency under review made the erroneous finding of fact \"without regard to the evidence\" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-78", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact \"without regard to the evidence\": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-79", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 124", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Turning now to the relevant case law of this Court, as noted, an issue very similar, if not identical, to the present was before the Court in PSAC. There, the Federal Public Sector Labour and Employment Board (the FPSLREB) intervened in a judicial review application from one of its decisions to argue that the combined effect of the privative clause in its constituent statute and the decreased role of jurisdictional error in the Supreme Court’s administrative law jurisprudence was to render its legal and factual determinations largely unreviewable. The relevant privative clause, identical to the privative clause in the constituent statute of the Canada Industrial Relations Board, is set out in subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, enacted by the Economic Action Plan 2013 Act, No. 2, S.C. 2013, c. 40. It provides: No review by court Impossibilité de révision par un tribunal 34 (1) Every order or decision of the Board is final and is not to be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. 34 (1) Les décisions et ordonnances de la Commission sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-80", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This Court roundly rejected the submissions of the FSPLREB, holding at paragraphs 23-33 as follows: [23] First, they fly in the face of the myriad decisions of this Court and of the Supreme Court of Canada in which decisions of the Board, the CIRB or their predecessors, involving alleged errors of law, fact or mixed fact and law, have been reviewed under the deferential reasonableness standard (or previously under the patent unreasonableness standard) despite the presence of the privative clauses in subsection 34(1) of the FPSLREBA and subsection 22(1) of the Canada Labour Code. The 43 cases listed in the Appendix to these reasons have been decided on this basis in the last two years. For each prior year, several additional cases would be added to the list. Thus, contrary to what the Board asserts, this issue has been definitively settled by the jurisprudence. [24] Second, as this Court held in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at para. 18, the term “jurisdiction”, when used in a provision like paragraph 18.1(4)(a) of the Federal Courts Act, must be understood in its appropriate historical context. This is in accordance with the principles of statutory interpretation, which require a court to have regard to the appropriate context when interpreting legislation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, 221 N.R. 241; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-81", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "[25] In 1990, when Parliament adopted subsection 18.1 of the Federal Courts Act, errors of jurisdiction in Canadian administrative law were understood to include errors of law, in circumstances where the Board was required to offer a correct interpretation, and patently unreasonable legal interpretations, as was noted in P.S.A.C. v. C.F.P.A.; see also C.A.I.M.A.W. v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] 2 S.C.R. 983 at pp. 1003-1004, 102 N.R. 1. Such errors were also understood to include findings of fact that would be caught by paragraph 18.1(4)(d) of the Federal Courts Act, as was noted in C.U.P.W. v. Healy. Thus, properly read in context, “jurisdictional errors” for purposes of setting forth a ground (as opposed to a standard) of review within the meaning of subsection 18.1(4) of the Federal Courts Act include situations where the Board makes an unreasonable legal interpretation or an error of fact within the ambit of paragraph 18.1(4)(d) of that Act. [26] Third, contrary to what the Board asserts, the decisions of the Supreme Court of Canada in Dunsmuir and Khosa cannot be understood to narrow the range of Board decisions that may be judicially reviewed. Rather, they hold that a common standard of review framework is to be applied to all federal administrative decision-makers and that, unless one of the exceptions discussed in Dunsmuir obtains, the applicable standard of review is reasonableness. This is evident both from the reasons of the majority in Khosa, at paragraphs 43 to 51 and from the reasons of Rothstein J. at paragraph 111 in the same case, where he discussed the import of the privative clause found in section 22 of the Canada Labour Code.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-82", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "He there wrote as follows: Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the [Federal Courts Act]. Where the privative clause applies, i.e. with respect to s. 18.1(4)(c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy. In such cases, the Dunsmuir analysis applies. There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud. Correctness review applies in these cases. [27] While the majority in Khosa disagreed that the Dunsmuir analysis applied only to paragraphs 18.1(4)(c) to (f) of the Federal Courts Act, they did not disagree that issues falling within the purview of paragraphs 18.1(4)(c) to (f) are subject to the Dunsmuir analysis. Thus, when read in their appropriate context, subsection 34(1) of the FPSLREBA and subsection 18.1(4) of the Federal Courts Act do not preclude review in the instant cases. [28] Fourth, the cases on which the Board relies enumerated in paragraph 14 of these Reasons do not constitute a binding ruling on this issue. Rather, to the extent these cases may contain passages that might support the Board’s interpretation, the Court’s comments are made only in passing and do not settle the issue. The relevant authorities, which do settle the issue, are P.S.A.C. v. C.F.P.A. and C.U.P.W. v. Healy, which, as already noted, directly contradict the Board’s arguments. Also relevant are the multitude of cases where this Court has reviewed under the reasonableness standard decisions like those challenged in this application.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-83", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, the case law relied upon by the Board is not determinative. [29] Fifth, contrary to what the Board asserts, its interpretation would not lead to greater expedition. Under the Board’s approach, this Court would be required to decide as a preliminary issue what paragraph in subsection 18.1(4) of the Federal Courts Act applies to each argument advanced in an application for judicial review and to determine the Court’s jurisdiction based on the characterization of issue. This sort of formalistic preliminary question-type analysis harkens back to the now abolished division in judicial review matters that limited review under the former section 28 (as opposed to section 18) of the Federal Courts Act to decisions made on a judicial or quasi-judicial basis: see Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177 at p. 197, 58 N.R. 1 (per Wilson J.); Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at pp. 895-902, 100 N.R. 241. This requirement led to convoluted, costly and lengthy debates about the character of a decision under review that did little to advance the substance of litigation, and these requirements were consequently abolished in the 1990 amendments to the Federal Courts Act: see An Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, s. 8. To adopt the Board’s approach would reintroduce similar debates and delays in the judicial review process, which are antithetical to the sound labour relations that the FPSLRA is designed to foster. Thus, the Board’s interpretation would in fact end up undermining the purpose of the Act.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-84", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "[30] Finally, contrary to what the Board says, its interpretation runs afoul of the rule of law concerns that provide the constitutional underpinning for judicial review of administrative action by the independent judicial branch: see Dunsmuir at paras. 27-29; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para. 13, 421 D.L.R. (4th) 381. Given recent pronouncements by the Supreme Court of Canada, the scope of jurisdictional issues that arise in administrative law cases is exceedingly limited, if such issues may still even be said to exist at all. Although the category of true questions of jurisdiction was recognized in Dunsmuir at para. 59 as attracting correctness review, the Supreme Court has repeatedly emphasized its narrow and exceptional nature: see, for example, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 at para. 26; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3 at para. 32. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 at para. 41, 36 Admin L.R. (6th) 1, the Supreme Court cast doubt on the category’s future: 41. The reality is that true questions of jurisdiction have been on life support since Alberta Teachers. No majority of this Court has recognized a single example of a true question of vires, and the existence of this category has long been doubted.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-85", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 125–126", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Absent full submissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will only reiterate this Court’s prior statement that it will be for future litigants to establish either that the category remains necessary or that the time has come, in the words of Binnie J., to “euthanize the issue” once and for all (Alberta Teachers, at para. 88). [31] As the Board acknowledges, the recognition that there are few, if any, questions of jurisdiction could result in its decisions being largely unreviewable. This cannot be. [32] In Dunsmuir, the Supreme Court of Canada underscored that judicial review must be available as a constitutional imperative and cannot be ousted by a privative clause. At paragraph 31, Bastarache and LeBel JJ., writing for the majority, stated: 31. The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). [33] Thus, for all the foregoing reasons, contrary to what the Board asserts, its decisions in the instant cases are amenable to review by this Court.\n\nIn my view, the foregoing is determinative and binding on this panel in light of the principles applied by this Court regarding the binding nature of decisions reached by a panel of the Court on subsequent panels (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, at paras. 8-10).", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-86", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 127–128", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the other hand, the decisions in Emerson Milling and Bell Canada are not dispositive. Both dealt with the scope of errors that could be reviewed in the context of an appeal for issues of law as opposed to the issue now before us, namely, whether an application of judicial review remains open for issues of fact in the face of a privative clause. Moreover, as my colleague notes, the legislation involved in Emerson Milling and Bell Canada allowed for appeals to the federal cabinet in addition to the statutory appeal to this Court. Such provisions might well have rendered access to judicial review for factual or policy issues unavailable in Emerson Milling and Bell Canada under section 18.5 of the Federal Courts Act.\n\nFinally, the case law of this Court in cases of this nature and, indeed, the decision of the Supreme Court of Canada in Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski], considered both legal issues and issues of mixed fact and law in the context of statutory appeals, as my colleague notes at paragraph 21 of his reasons. That this occurred is not surprizing given that the Supreme Court in its administrative case law decided prior to Vavilov had removed all distinctions between statutory appeals and applications for judicial review. However, by reasons of the new edict that appeals are henceforth to be decided under appellate as opposed to judicial review principles, it is now necessary that the small range of reviewable factual issues that do not constitute errors of law as they go slightly beyond findings based on a lack of evidence be pursued by way of an application for judicial review.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-87", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 129–131", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Crevier has since oft been cited for the proposition that a legislature cannot completely oust judicial review: see e.g. Vavilov at para. 24; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 31. As Stratas J.A., for this Court, recently framed it, “[p]ut positively, Crevier stands for the proposition that there must always be at least some prospect or degree of review”: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 2021 CarswellNat 1003 at para. 102 [Canadian Council for Refugees]. This is indeed all it stands for. It does not imply that the legislature cannot limit or preclude judicial review of administrative decisions for certain types of issues: see e.g. Canadian Council for Refugees at para. 102, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402 at 333; Capital Regional District v. Concerned Citizens of British Columbia et al., [1982] 2 S.C.R. 842, 141 D.L.R. (3d) 385; Vavilov at paras. 45–52. On the contrary, as the emphasized portion of the above cited passage makes clear, Crevier actually explicitly states that the legislature may oust judicial review on issues not touching jurisdiction.\n\nIt is also clear from the above cited passage that, at the time, the Supreme Court considered “questions of jurisdiction” to be a more narrow and important category of question than “questions of law”. In my view, it follows that, according to the reasoning espoused in Crevier, a statutory scheme that allows for appeal of an administrative decision on a question of law meets the constitutional threshold articulated in Crevier.", - "current_to": "2021-08-05", + "text": "From the foregoing, it follows that this appeal should be dismissed as the issues of mixed fact and law raised by the appellant cannot be raised in the context of an appeal under section 68 of the Customs Act. However, even if the appellant had filed an application for judicial review, the same result would obtain as the alleged errors of mixed fact and law raised by the appellant fall well short of the sort of error that might lead to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn this regard, as my colleague notes, the appellant challenges the CITT’s consideration of the practices and procedures of the WCO Committee and of the opinion of an interior designer who testified as a witness. Consideration of these matters cannot be said to be “perverse” and each was rationally connected to the issues before the CITT. The CITT also adequately explained the use it made of such evidence in its reasons. Its consideration of the matters impugned by the appellant accordingly would not give rise to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn light of the foregoing, I would dismiss this appeal, with costs. “Mary J.L. Gleason” J.A. “I agree. René LeBlanc J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-466027-1", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 1–3", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a decision of Justice Zinn of the Federal Court (the Applications Judge) dated November 7, 2018, which granted two applications for judicial review made by Honey Fashions Ltd. (Honey Fashions, or the respondent). The Federal Court set aside the decisions made by the Canada Border Services Agency (CBSA), which denied Honey Fashions’ claims for duty remission made under the Textile and Apparel Remission Order, 2014, SOR/2014-278 (TARO 2014).\n\nThe central issue is whether it was unreasonable for the CBSA to apparently reverse an administrative practice and deny name change requests to designate Honey Fashions as importer of record of goods that had been previously imported by others, so that Honey Fashions could obtain remissions under the TARO 2014 program. For the reasons that follow, I have concluded that, in light of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov), the Federal Court did not err in quashing these two decisions of the CBSA. The appeal should therefore be dismissed.\n\nAll goods imported to Canada are subject to the provisions of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), the Customs Tariff, S.C. 1997, c. 36, the Excise Act, 2001, S.C. 2002, c. 22, the Excise Tax Act, R.S.C. 1985, c. E-15, and the Special Import Measures Act, R.S.C. 1985, c. S-15, by which customs duties and taxes are assessed. However, the Governor in Council may, on recommendation of the responsible minister, remit all or a portion of the customs duties by way of a remission order.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-2", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 4–6", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "In 1988, the Department of Finance introduced a series of remission orders, intended to help Canadian textile and apparel manufacturers face the challenges of increased international competition. This program allowed listed companies (eligible companies) to import certain goods duty-free as long as they met the conditions specified in the orders. As a result, it was thought that Canadian manufacturers could rationalize their production by specializing in only a few lines while earning remission credits to import complimentary goods, thereby allowing Canadian apparel manufacturers to market a complete fashion line.\n\nIn 1997-98, these orders were superseded by updated versions to comply with the North American Free Trade Agreement (NAFTA). The new version of the program set a capped annual remission entitlement for each listed company, based on the total amount of remission that each manufacturer had received in 1995. The six remission orders listed below formed the basis of the TARO program:\n\nMany manufacturers preferred to focus on manufacturing textiles and apparel in Canada. They had limited, if any, interest in becoming importers. As a result, they began looking for ways to earn the benefits of the program as Canadian manufacturers without being obliged to start or expand an importing business. It appears that for many years, officials of the Department of Finance and of the CBSA allowed eligible Canadian manufacturers to contract with Canadian importers so that Canadian manufacturers could take advantage of their remission entitlements, all with the goal of ensuring that the benefits of the remission program would flow to the Canadian manufacturers.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-3", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 7", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "As evidence of that practice, the respondent filed the affidavit of Stephen Yanow, the president of a blouse manufacturer which used the TARO program and whose main business between 1998 and 2012 was matching eligible Canadian manufacturers with Canadian importers who imported qualifying goods. He testified that officials of the Department of Finance approved of that practice, and attached as an exhibit to his affidavit a memorandum (for information) from an official of that Department to that effect. The Applications Judge quoted that memorandum in full at paragraph 10 of his reasons. The memorandum addressed the emerging practice of “remission brokers”, which it described in the following way: The “remission broker” is a recent phenomenon. These are customs brokers or consultants who identify manufacturers who have not used all of their import entitlement. For a fee, they locate importers who are interested in buying the entitlement. Depending on how you look at it, they essentially provide a service to manufacturers to locate importers willing to purchase excess entitlement. In this way, the manufacturers will receive some of the remission benefit (in the form of cash) that they otherwise would not have used. Appeal Book, vol. 2, p. 447", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-4", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 8–9", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Department official advised that such a possibility was contemplated at the inception of the program, and that such a practice was in compliance with the conditions set out in the remission Orders and the Customs Act: Finance was apprised at the inception of the program about the possibility of selling of entitlement and, as it is currently taking place, the practice is in compliance with the conditions set out in the remission Orders and the Customs Act. (There is no requirement in the Orders that the importer of record be the owner of the goods imported. Manufacturers are simply acting as agents for third party owners and paying a remitted duty – the benefit of which is passed on to the owner.) In fact, it could be argued that it is the marketplace at work. Appeal Book, vol. 2, p. 448\n\nIn the summer of 2010, the CBSA discovered irregularities in its administration of the TARO program regarding the transfer of remission entitlements between several companies. It suspended the processing of all TARO program claims in the fall of 2010, and undertook a comprehensive Quality Assurance Review (QAR) of the program. As a result, Honey Fashions’ claims for duty remission on goods imported in 2006, 2007, 2008 and 2009 were held in abeyance.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-5", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 10–12", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The QAR confirmed three errors committed by the CBSA, one of which being that the CBSA had been permitting certain eligible companies to transfer their remission entitlement, presumably for a fee, to other companies in cases it should not have. Once these irregularities were discovered, the CBSA developed and issued Memorandum D8-11-7 on November 28, 2012 (Policy on the Transfer of Entitlement Pursuant to the Textile and Apparel Remission Orders), which explains how entitlements to remission of customs duties pursuant to the remission orders may be transferred. It explains that the entitlements of an eligible manufacturer cannot be bought, sold or transferred, but can be re-allocated permanently to another company when that other company acquires, purchases or otherwise takes control of the operation of the eligible manufacturer.\n\nThe above-mentioned memorandum additionally recognizes the possibility of entering into “partnering agreements”. Paragraph 5 of the Memorandum states as follows: Subject to conditions, an eligible manufacturer or eligible fabric producer (one who is named in the Schedule to the Order), may enter into a partnering agreement with another company in order to realize its full remission allocation in a given year. In this way, the eligible company is the importer of record for the goods and the other company is the owner or consignee of the goods.\n\nSuch an agreement is subject to some conditions, one of which is that the agreement must be finalized and dated “prior to the release of the imported goods by the CBSA” (Memorandum D8-11-7, at para. 5(b)).", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-6", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 13", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "Paragraph 6 of the Memorandum also seemingly allows a party that has imported goods and paid the duty on those goods to be subsequently replaced as the importer of record by an eligible manufacturer, by way of a name change request. Such a name change request must be made at the same time and on the same form as the claim for remission by the eligible manufacturer. This paragraph reads in part as follows: If goods that are subject to a partnering agreement and for which remission is or will be claimed have already been imported and accounted for in the name of the other company (i.e., the owner or purchaser), it will be necessary to amend the importer name before remission will be approved. In such cases, a name change request must be submitted in accordance with instructions set out in CBSA Memorandum D17-2-3, Importer Name/Account Number or Business Number Changes.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-7", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 14–15", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "Memorandum D17-2-3, referenced in Memorandum D8-11-7, outlines the procedures to be followed when an importer name change is necessary due to error on the part of the importer or the CBSA. Pursuant to section 7.1 of the Customs Act, all information provided to the CBSA must be “true, accurate and complete”. Paragraphs 14 to 22 of this Memorandum set out the procedure to be followed where the incorrect party has been named as the importer of record but where the true importer was entitled to conditions, exemptions and/or privilege (such as remission of duties under TARO). Paragraph 22 provides that the name change request must be: (a) supported by documents (e.g., purchase orders, commercial invoices, cancelled cheques, fax transmissions, written correspondence), which clearly indicate the claimant’s interest and the part played by the claimant in the import transaction; (b) supported by a letter from the importer of record, disclaiming involvement in the importation; and (c) supported by a clear and complete explanation of why the party named as the importer on the original accounting document was so named, and why the importer/broker/agent now believes that a second party is the true importer.\n\nThe CBSA recognized that the errors identified in the QAR were entirely its fault. Since Schedule 1 manufacturers who received remissions had relied in good faith on representations made and authorizations issued by CBSA officials, and had made business decisions accordingly, the CBSA concluded that it would be unfair to revoke the authorizations and seek to collect the duty that had been remitted.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-8", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 16–18", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "To correct the situation, TARO 2014 was enacted. It governed the administration of the TARO program from 2008 until 2012, the year the TARO program ended. TARO 2014 was designed to ensure that eligible Schedule 1 manufacturers received their full entitlement to remission up to 2012. Remissions to the companies listed in Schedule 1 to the Order were subject to the following conditions: a) the goods were imported into Canada between January 1, 2008 and December 31, 2012; b) the erroneous authorization for the remission must have been issued by the CBSA on or before December 31, 2012; and c) an application for the remission is received by the CBSA on or before the deadline set out in Schedule 2 of the Order. The conditions from the six original and separate TARO programs were also incorporated into TARO 2014.\n\nHoney Fashions is one of the companies listed on Schedule 1 of TARO 2014. Three of its drawback claims are relevant for the purpose of this appeal, each of which was accompanied by a name change request:\n\nThe last two claims were essentially resubmissions of past drawback claims that had been refused by the CBSA in February and August 2016 because they did not provide the proper documentation required in accordance with Memorandum D17-2-3. The resubmitted claims were accompanied by additional letters and arguments, but Honey Fashions did not provide the substantiating documents required by the Memorandum for their name change requests. On September 6, 2017 a senior official of the CBSA denied both of the resubmitted claims, on the basis that the documents provided “do not clearly establish that the name change is the result of an error of the importer or the [CBSA] or that the terms of Memorandum D17-2-3 have been met” (Appeal Book, vol. 1, pp. 175 and 292).", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-9", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 19–21", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "Applying the reasonableness standard, the Federal Court found in favour of Honey Fashions. Reasoning that the decision to deny Honey Fashions the remissions under the TARO program stands or falls with the decision not to accept the name change requests, the Court focused on that decision and determined that it was made in breach of the CBSA’s duty of fairness in addition to being arbitrary and unreasonable.\n\nThe Federal Court found that Honey Fashions had a legitimate expectation, based on a clear, unambiguous and unqualified regular practice, that the CBSA would accept their name change requests and approve the drawback claims. In denying the claims without detailed reasons for what the Federal Court characterized as a “change in the procedure for changing the importer of record”, the CBSA treated Honey Fashions unfairly (Reasons, at paras. 43-48).\n\nThe Federal Court also found that the CBSA’s decision was unreasonable because it lacked justification, transparency and intelligibility. In the Federal Court’s view, there was no material difference between the claim filed in 2010 and the claims filed in 2015 (and refiled in 2016). Although acknowledging that CBSA officials are not subject to the doctrine of stare decisis, the Federal Court found the decision to grant the former but deny the latter without additional explanation to be arbitrary, and thus unreasonable.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-10", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 22–25", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the only issue to be decided by this Court is whether the Applications Judge erred in its application of the reasonableness standard of review to the CBSA’s decisions. The parties have also challenged the Applications Judge’s ruling on procedural fairness but for reasons developed below, I do not think that issue need be addressed here, if only because it appears to be a mere restatement of the conclusion on substantive reasonableness.\n\nThe Federal Court’s finding that the CBSA has jurisdiction to determine the identity of the importer of goods into Canada is not under appeal.\n\nThe original appellants in this appeal were the Attorney General of Canada and the President of the Canada Border Services Agency. They were the unsuccessful respondents in the application for judicial review in the Federal Court.\n\nAccording to Rule 303 of the Federal Courts Rules, S.O.R./98-106, however, the Attorney General of Canada should have been the only respondent in the Federal Court. As a result, the Attorney General of Canada is the only proper appellant in this Court. The style of cause should therefore be amended to reflect that change, and the President of the Canada Border Services Agency should be removed as an appellant.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-11", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 26–27", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "After the hearing of this appeal, the Supreme Court of Canada released its decision in Vavilov. This Court thus requested further written submissions from the parties with respect to the applicable standard of review. There is no dispute between the parties that when this Court sits on appeal of a decision by the Federal Court reviewing an administrative decision, our task is to determine whether the application judge correctly identified the appropriate standard of review and applied it correctly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47 [Agraira]. In the case at bar, both parties agree that reasonableness remains the applicable standard of review.\n\nUnderstandably, the appellant and the respondent focus on different aspects of the Vavilov decision. The appellant acknowledges that where a decision maker departs from longstanding practices or established internal authority, the departure must be explained in its reasons. However, the appellant argues that the CBSA did not break with its longstanding practices because it has consistently considered importer name change requests in the context of its evaluation of remission claims under TARO. In the appellant’s view, Honey Fashions’ longstanding practice of submitting post-importation name change requests without substantiating evidence must not be conflated with the CBSA’s past decisions to accept its request without substantiating evidence.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-12", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 28–29", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent retorts that the majority in Vavilov stressed the importance of justification for administrative decision makers, and that a more robust form of review is called for to ensure consistency and to guard against the threat of arbitrariness. Accordingly, in the respondent’s view, the Federal Court was right to focus on the CBSA’s reasons and on the need for the CBSA to explain its abrupt policy change. Relying more explicitly on paragraph 131 of Vavilov, the respondent stresses that one of the factors constraining the reasonableness of a decision is the need to provide explanations when a decision departs from longstanding practices or established internal decisions. Needless to say, Honey Fashions strongly disagrees with the appellant’s submissions that past practices and internal decisions are not the same.\n\nIn my view, the respondent rightly points to the importance given by the Supreme Court in Vavilov to the justification of a decision. To the extent that reasons have been provided, the reviewing court must pay close attention to those reasons to ensure that the decision is the result of an “internally coherent and rational chain of analysis” (Vavilov, at para. 85). In other words, the reasons may be as important as the result. As the majority stated at paragraph 86: In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-13", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 30–32", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "In addition to the reasons provided, Vavilov directs the reviewing court to examine the reasonableness of an administrative decision in terms of the legal and factual constraints on the decision maker’s discretion. Among the constraints that bear on the reasonableness of a decision are the governing statutory scheme, the evidence before the decision maker, past practices and past decisions, and the impact of the decision on the affected individual. I will turn to each of these factors as they are the most relevant to the resolution of this dispute.\n\nBecause they exercise delegated authority, administrative decision makers must obviously act within the powers they receive by statute; accordingly, the governing statutory scheme is of crucial importance in determining the reasonableness of their decisions. In that respect, the range of discretion given to a decision maker will be of particular interest in assessing whether they have acted within the confines of the law.\n\nIn the case at bar, the appellant claims that the CBSA’s decisions comply with the rationale and purview of the statutory scheme under which the decisions were made, namely section 7.1 of the Customs Act and the TAROs. For situations like this, the D8-11-7 Memorandum directs parties to file name change requests “in accordance with instructions set out in CBSA Memorandum D17-2-3”. In each of the remission claims at issue, Honey Fashions provided accounting documentation that identified another company as importer of the qualifying goods. The drawback claims included letters noting the CBSA’s memorandum on importer name changes, and indicating that “incorrect party has been named as importer of record” (Tevel affidavit, Appeal Book, vol. 1, Tab 7, Ex. E, pp. 332, 341-342, 351, 354 and 362).", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-14", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 33–35", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The D17-2-3 Memorandum is very clear on what documentation is required in support of a name change application (see paragraph 14, above). A pre-importation partnering agreement would have been acceptable substantiating evidence, as well as any documents clearly establishing that the claimant was the true importer. Honey Fashions did not provide the necessary documentation; instead, it tried to rely on a declaration that it was assuming the obligations of importer of record with the consent of the original importer (Appeal Book, vol. 1, pp. 300, 387).\n\nI agree with the appellant that for the CBSA to comply with the Customs Act, it had to ensure that the person who causes the goods to be exported to Canada was truly the importer before it could approve retroactively an importer name change request. This is consistent with section 7.1 of the Customs Act, which requires that all information provided to the CBSA shall be true, accurate and complete, and with the plain and ordinary meaning of “importer”. There is certainly an argument to be made that if the CBSA is precluded from excluding post-importation involvement and is forced to accept name change requests on the basis of a partnering agreement entered into after the goods are effectively imported to Canada, it would be constrained from performing its regulatory functions of verification and would be acting contrary to section 7.1 of the Customs Act.\n\nIf the reasonableness of the decisions under review were to be assessed on the sole basis of their conformity with the overall legislative scheme pursuant to which they were made, they might pass muster. The decisions of the CBSA are arguably consistent with the Customs Act and the applicable TAROs. To that extent, they may be considered reasonable in the abstract.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-15", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 36", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent claims, however, that the impugned decisions of the CBSA are at odds with past practices and past decisions. Relying on testimonial and documentary evidence, Honey Fashions argued that there was a consistent and longstanding departmental practice of accepting post-importation name changes on the basis of post-partnering agreements. The Applications Judge accepted that evidence in the following terms: [47] The uncontradicted evidence before the Court is that Honey Fashions has participated in the TARO Program since its inception, that it was not a major importer of apparel but took full advantage of its entitlements under the program by becoming the importer of record of goods previously imported by others. It did so by filing a name change with the CBSA to record it as the importer of record, with the agreement of the initial importer. This procedure was accepted and arguably endorsed by the CBSA. Until the decisions under review were made “CBSA officials consistently accepted the name change notification to change the importer of record, and processed Honey Fashions’ remission applications on the basis that Honey Fashion was the importer of record.” The change in the procedure for changing the importer of record had dramatic consequences to Honey Fashions.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-16", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 37", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "In its initial submissions, the appellant stressed that the doctrine of stare decisis does not apply to administrative decision makers, and that they are not required to explain the differences between two separate decisions. Following the release of Vavilov, counsel recognized that departures from longstanding practices or established internal authority must now be explained, but argued that there was no such departure in the case at bar. In a somewhat specious argument, counsel contends that the CBSA’s practice has not changed in the context of a claim for remission of customs duties because its decision to accept the name change in the past is not a practice but a substantive outcome. To quote from their written submissions (at paragraph 6 of their January 31, 2020 letter), “[e]ssentially, Honey Fashions conflates their alleged long-standing practice of submitting post-importation name change requests without substantiating evidence, with the CBSA’s past decisions to accept their request without substantiating evidence”. In my view, this is a distinction without a difference and, as such, an argument without merit.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-17", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 38", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "First of all, I note that the Supreme Court uses “past practices” and “past decisions” interchangeably in Vavilov, and is more concerned with the need for coherence and justification than with semantics. What matters is that like cases be treated alike and that outcomes shall not be dependant on the identity of the individual decision maker (at para. 129). In that spirit, it matters not whether a course of action is labelled as “past practices” or “past decisions”. Of course, I agree with the appellant that the CBSA must always be able to exercise its discretion to determine how and when verification for compliance is conducted, and to consider importer name change requests in the context of its evaluation of remission of customs duty claims under TARO. However, if the evidence establishes that the CBSA has consistently allowed importer name change requests for remission of customs duties without requiring substantiating evidence showing pre-importation partnering agreements, these past decisions amount to past practices (both for Honey Fashions and the CBSA).", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-18", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 39", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "As previously mentioned at paragraph 18 of these reasons, both the 2011 and 2012 claims were rejected without any explanation or justification as to why those claims ought to be treated differently from earlier ones. This is particularly egregious considering that the 2009 claim had been accepted on the basis of the same information given by Honey Fashions (although admittedly on the basis of the pre-QAR policies and before CBSA issued the D8-11-7 Memorandum). Once again, this is not to say that the CBSA was bound to follow the same course of action it had followed in the past. CBSA was indeed entitled to modify its policy in order to comply with the Customs Act, provided that in so doing, its interpretation is reasonable. However, in the circumstances of this case, the CBSA should have provided an explanation to Honey Fashions with respect to its departure from past practice. As the Supreme Court stated in Vavilov (at para. 131): We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-19", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 40–41", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "I am therefore of the view that the decisions of the CBSA were not reasonable in light of this important contextual consideration in the present case. It was not sufficient to claim, ex post facto, that the decisions made by the CBSA official complied with the rationale and purview of the statutory scheme under which they were made. In light of the impact of the decisions on the respondent, CBSA had to provide it with an explanation as to why the past practice was not followed and, presumably, why a post-importation partnering agreement would be contrary to section 7.1 of the Customs Act and would undermine the customs scheme when such agreements had been accepted without question in the past. Accordingly, on the basis of the recent teachings of the Supreme Court in Vavilov, it was open to the Federal Court to hone in on the fact that the CBSA official made no reference to his earlier decision or to the longstanding departmental practice of accepting name change requests without certain supporting documentation. I therefore agree with the Federal Court’s conclusion that the CBSA’s decisions lack justification, transparency and intelligibility.\n\nFinally, the appellant challenges the Federal Court’s factual finding that the CBSA had a policy dating back from the inception of the TARO program of approving post-importation name changes. They argue that, in the absence of direct evidence, the Federal Court could only consider serious, precise and concordant presumptions, the like of which do not arise from this record. The respondent, on the other hand, asserts that there was direct evidence as well as supportive indirect evidence allowing the Applications Judge to find that the CBSA “arguably endorsed” such a practice.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-20", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 42–43", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "I accept the appellant’s submission that the testimonies of Bernie Tevel and Stephen Yanow are not sufficient to establish that the CBSA was aware of and endorsed Honey Fashions’ practice to claim duty remission on goods previously imported by others. These individuals could certainly testify that the CBSA routinely accepted name change notifications changing the name of the importer of record on the customs entry forms from the original importer to the Canadian manufacturer, without any indication as to whether the agreement was made prior to or after the importation. But they cannot purport to know what the CBSA was aware of at the time these decisions were made, and in particular whether the CBSA was aware that the importer name changes were based on post-importation agreements. This is precisely why the Federal Court was careful to state that this procedure was accepted “and arguably endorsed” by the CBSA (Reasons, at para. 47).\n\nThis is not the only basis, however, upon which the Federal Court came to the conclusion that there is direct evidence that the CBSA consistently accepted post-importation name change notifications to allow Schedule 1 manufacturers to claim remissions for goods previously imported by others. It noted that this administrative process was not flagged during the QAR as an unacceptable or illegitimate practice, and was not objected to in the course of the audits to which Honey Fashions was subjected at least three times (Reasons, at para. 48). These factual findings are entitled to a high degree of deference.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-21", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 44–46", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant further submits that the Federal Court improperly relied on indirect evidence (primarily an internal memorandum from a Minister of Finance official dated April 26, 1993, and Memorandum D8-11-7) to conclude that the CBSA accepted post-importation name change notifications. I agree with the appellant that these two documents are inconclusive and would be insufficient, in and of themselves, to establish that the CBSA has endorsed and condoned post-importation name change agreements. However, this is beyond the point.\n\nFirst of all, it is not at all clear that the Federal Court relied on that evidence to reach its conclusion. There was enough direct evidence to the same effect in the record. More importantly, Memorandum D8-11-7 could not have been offered as proof of the CBSA practice, since it was only released in late 2014. It could only be presented as being consistent with the alleged CBSA practice and in support of the direct evidence. Ultimately, I find the indirect evidence of little help for the resolution of the questions before us.\n\nIn light of all the foregoing, I am of the view that the Federal Court did not err in finding that the decision by the CBSA not to accept the name change requests was unreasonable. If anything, that conclusion is bolstered by the recent decision of the Supreme Court in Vavilov, with its insistence on the need for a reasonable decision to be justified in light of the legal and factual constraints that bear on that decision. A decision maker cannot deviate from earlier decisions or from a longstanding past practice, especially when it is too late for those affected by these decisions to adjust their behaviour accordingly, without providing a reasonable explanation for that departure.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-22", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 47–49", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "As for the Federal Court’s finding that the CBSA’s refusal to accept Honey Fashions’ importer name change requests were made contrary to its legitimate expectations, I need not say much. I agree with the appellant that the respondent did not raise the duty of fairness before the Federal Court either in its Notices of Application, in its Memoranda of Fact and Law, or at the hearing. Allegations were made that the decisions being challenged were unfair and arbitrary, but these arguments were meant to substantiate the purported unreasonableness of the decisions, not a breach of procedural fairness.\n\nAs a matter of fairness, courts should constrain themselves to the grounds raised in the pleadings. As the Supreme Court stated in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 at para. 9, “each party is entitled to know and respond to the case that it must answer”. I accept that the respondent did argue unfairness in relation to its legitimate expectations, but this was not sufficient in my view to squarely raise procedural fairness per se. It is clear from a transcript of the hearing that the parties never joined issue on that question (see, in particular, Appeal Book, vol. 2, at pp. 629, 657 and 671), and it was therefore an error of law for the Federal Court to conclude that the appellant violated Honey Fashions’ legitimate expectations.\n\nBe that as it may, the Federal Court’s procedural fairness analysis was really a substantive review in disguise. Its conclusion with respect to procedural fairness appears to be nothing more than a restatement of its conclusion on substantive reasonableness, as is readily apparent from these two findings:", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-23", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 50–51", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, I also agree with the appellant that the doctrine of legitimate expectations cannot give rise to substantive rights: Agraira at para. 97; Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 at p. 557; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 75. Past practices, therefore, could not ground a legitimate expectation that a request for a name change to the importer of record would be granted in the future even if such a practice is established. The Court may only grant appropriate procedural remedies in the event that the conditions for the application of this doctrine are met: see C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 131.\n\nMoreover, legitimate expectations is only one of the factors to be considered in determining what procedural fairness requires in a given context: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 22-28. In the case at bar, there is no suggestion that Honey Fashions was not given a fair procedure, including notice and an opportunity to provide additional substantiation for its claims. I find, therefore, that the Federal Court erred in concluding that the decision by the CBSA not to grant the name change requests was made in breach of its duty of fairness.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-24", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 52", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "For all of the above reasons, I would dismiss the appeal, maintain the judgment of the Federal Court, and return the remission claims of Honey Fashions to the CBSA for redetermination in accordance with these reasons, the whole with costs in this Court and in the Court below. I would amend the style of cause and remove the President of the Canada Border Services Agency as an appellant. The style of cause on these Reasons and on the Judgment should reflect this amendment. “Yves de Montigny” J.A. “I agree Richard Boivin J.A.” “I agree Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-419470-1", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 1–3", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hociung appeals from the judgment of the Federal Court (per Gleeson J.) granting the respondent’s motion for summary judgment and dismissing his action (2018 FC 298).\n\nIn a companion appeal in file A-101-18, Mr. Hociung appeals the order of the Federal Court (per Gleeson J.) dismissing his motion for leave to amend the statement of claim. Although two notices of appeal were filed, these two decisions are linked and the findings in respect of the motion for summary judgment may have an impact on the merits of the proposed amendments.\n\nThe Canada Border Services Agency (the CBSA) seized four $50 USD Buffalo Bullion coins and twenty $1 USD Silver Eagle coins when Mr. Hociung failed to declare these precious metal coins as “goods” upon his entry into Canada from the United States allegedly in contravention of section 12 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (the Customs Act).", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-2", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 4", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hociung purchased the coins in the United States at a cost of $5,700 USD, although their denomination or face value is $220 USD. Mr. Hociung had been traveling to the United States for the day only (same day traveler); he was not questioned about the amount of “cash” or “currency” in his possession by the CBSA officer and the seizure did not relate to a failure to declare the coins under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, S.C. c. 17 (the Proceeds of Crime Act) or the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 (the Reporting Regulations). The coins were discovered after Mr. Hociung was asked to present himself to the CBSA’s office for inspection after he declared having bought two new tires for his car in the United States (declared value $500). There is no indication in the record that he was asked to pay any duties or taxes on the tires.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-3", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 5–6", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hociung contested the seizure and requested a decision from the Minister of Public Safety and Emergency Preparedness (the Minister) on the issue of whether the Customs Act had been contravened. Pursuant to section 131 of the Customs Act, the Minister’s delegate found that there had indeed been a contravention of section 12 of the Customs Act, but as he was entitled to do pursuant to section 133 of the Customs Act, he reduced the penalty for the release of the seized coins from $1,606.97 to $321.39 (section 133 of the Customs Act). He dismissed Mr. Hociung’s argument that the coins were “currency” as opposed to “goods” and therefore he did not need to declare them under the Customs Act. It is in this context that Mr. Hociung contested the CBSA’s interpretation of the word “currency” in the Proceeds of Crime Act that contributed in his view to a misapplication of the Customs Act and the Proceeds of Crime Act, as well as the relevant regulations adopted under the latter statute.\n\nThe denomination value of the coins ($220 USD) if used as legal tender in the United States was less than $10,000 CAD. Even if held to be currency within the meaning of the Proceeds of Crime Act, Mr. Hociung was not required to declare the coins under that statute as their value was below the limit set out in the Reporting Regulations. There is no dispute about this.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-4", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 7–8", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister’s delegate issued his decision on May 28, 2015. On August 28, 2015, Mr. Hociung filed his action before the Federal Court. Although his action includes an appeal pursuant to section 135 of the Customs Act, it does include other claims and seeks additional relief, including damages based on alleged torts committed during the interaction between CBSA employees and Mr. Hociung, such as threats of violence and fraudulent misrepresentations.\n\nIn his statement of claim, Mr. Hociung, a self-represented litigant, describes the seizure and the alleged misinterpretation of the Customs Act, the Proceeds of Crime Act and the Currency Act, R.S.C., 1985, c. C-52 (the Currency Act) by the CBSA as fraudulent and designed to (i) aid crime and terrorism in Canada, and (ii) make illegal profits from the taxation of “currency” as “goods”. He alleges that various employees involved in the seizure and his contestation of it are guilty of criminal conduct. Among the other relief sought are damages and various declarations, such as a declaration that Canadian and foreign precious metal coins fall within certain provisions of the Proceeds of Crime Act as opposed to the Customs Act. Mr. Hociung also seeks an order directing the Prime Minister to create an oversight body to ensure the lawful implementation of the Proceeds of Crime Act, as well as an order directing the refund of all taxes, duties, and any fines obtained by the CBSA in relation to shipments of gold and silver coins, foreign and domestic, since the Proceeds of Crime Act was enacted.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-5", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 9", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "In his motion to amend his statement of claim (the subject of the appeal in file A-101-18), Mr. Hociung seeks to add two defendants, including Her Majesty the Queen (vicarious liability), as well as claims against other employees of the CBSA involved in the process leading to the Minister’s final decision (see e.g., paragraphs 3(a)(4), 3(a)(4)(g), 5 and 6 of the proposed amended statement of claim). He also wishes to include various factual details, particularly with respect to the so-called “money laundering scheme run by the CBSA” (such as paragraphs 9, 10 and 11 of the proposed amended statement of claim), references to internal bulletins, and previous instances involving the alleged “misapplication” of the Proceeds of Crime Act and other statutes by the CBSA, of which he became aware after filing his action. Mr. Hociung also sought to amend his statement of claim to refer to section 469 of the Criminal Code, R.S.C. 1985, c. C-46, which grants the power to every court of criminal jurisdiction to deal with certain types of offences, and to include additional relief such as an order directing the Minister of Public Safety to dismantle the present CBSA and to implement a new Agency that conforms to the requirements of the Canada Border Services Agency Act.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-6", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 10–11", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "In August 2016, after filing a brief statement of defence, the respondent filed a motion in writing seeking an order striking out the statement of claim in its entirety without leave to amend. In her order dismissing the said motion, Prothonotary Milczynski made it clear that the respondent had not relied on an alternative approach of challenging each type of claim and relief sought so that at least some portions of the statement of claim could be struck. Having found that it was not clear that the appeal pursuant to section 135 of the Customs Act was without merit and that Mr. Hociung had to institute a separate action for his other causes of action, the Prothonotary dismissed the motion. That said, she expressly noted that the respondent would not be prevented from seeking an order striking out portions of the statement of claim at a later stage, once Mr. Hociung filed the motion to amend he alluded to in his representations before her.\n\nOn February 20, 2017, Mr. Hociung filed a motion in writing to amend his statement of claim. On March 1, 2017, the respondent filed the motion for summary judgment that resulted in the decision under appeal in this file. Despite the Prothonotary’s comments, once again, rather than relying on arguments targeted at each type of claim and relief sought, the respondent asked for the dismissal of the entire action, even in its amended form based on what the respondent considered the only genuine issues. These consisted of two questions of law: (i) whether, in an action brought under section 135 of the Customs Act, a plaintiff may claim damages or seek mandamus, and (ii) whether collector coins are “currency” or “goods” for the purpose of the Customs Act.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-7", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 12–14", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is not disputed that in an appeal pursuant to section 135 of the Customs Act, a plaintiff cannot contest decisions such as the imposition of a penalty made under other provisions of the Customs Act, for generally such decisions must be contested by an application for judicial review to be filed within 30 days of the decision, rather than an ordinary action filed within the 90 days from the notification of the ministerial decision (see for example Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724; Starway v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1208) and very recently Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170 at para. 9).\n\nRelying on the jurisprudence referred to in the Federal Court’s reasons (the Reasons) at paragraphs 27 to 29, the respondent sought to exclude any other claims or relief from the statement of claim on the basis that these were also outside the scope of section 135. Presumably, rather than dealing with the numerous legal issues arising from the nature of those allegations including jurisdiction and standing, this offered an easier way to dispose of the numerous claims and relief sought by Mr. Hociung.\n\nObviously, unless the respondent succeeded on the first question of law, the answer as to the second question of whether Mr. Hociung’s collector coins were “goods” or “currency” could not warrant the dismissal of the statement of claim in its entirety (see Reasons at paras. 16 to 20). Indeed, as acknowledged by the respondent’s counsel at the hearing before us, unless a joinder of causes of action is precluded, the answer to the second question clearly could not justify the dismissal of the claim for damages based on threats of violence by a CBSA officer.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-8", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 15–17", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "I ought to note that there are obvious difficulties arising when a party is self-represented and may lack legal knowledge and some or all of his claims may be without merit. Despite this reality, defendant’s counsel has the duty to put before the court a motion including all of the appropriate grounds and authorities that will enable the Court to efficiently strike out or dismiss a claim on the basis that it has no merit. Efficiency and proportionality do not justify undue legal shortcuts.\n\nThe Federal Court dismissed the action after reformulating the first question as follows: “Is an action commenced pursuant to section 135 of the Customs Act limited to a determination of whether there has been a contravention of the Customs Act?” It found that anything other than whether or not Mr. Hociung had contravened section 12 of the Customs Act was beyond the scope of a section 135 action and must be pursued in other proceedings (Reasons at paras. 25 to 32). Except for a brief mention at paragraph 26 of the Reasons that it had not been persuaded by Mr. Hociung that section 135 allows for a joinder of various causes of action, the Federal Court did not explain why it excluded the application of Rules 101and 106 of the Federal Courts Rules, S.O.R./98-106 (the Rules), from the ambit of subsection 135(2) of the Customs Act (See paragraph 21 below).\n\nIn respect of the second question, it held that the collector coins at issue are “goods” within the meaning of section 12 of the Customs Act and had to be declared. Thus, Mr. Hociung had contravened the Customs Act and his collector coins could be seized on that basis.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-9", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 18–20", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Furthermore, the Federal Court found that even if in its view these type of coins may also have to be declared when their denomination value was over the limit of $10,000 CAD or its equivalent in foreign currency (section 12 of the Proceeds of Crime Act and section 2 of the Reporting Regulations), the fact that these coins are also “goods” under the Customs Act does not create a true conflict between the relevant legislative provisions (Reasons at paras. 68 to 72).\n\nImportantly, the Federal Court also noted that the question of whether duties were payable on these “goods” was not the issue in the action, as the obligation to declare under section 12 of the Customs Act was not limited to “goods” on which duties are actually payable (Reasons at paras. 63 to 66).\n\nThis appeal raises the following main issues: Did the Federal Court make a reviewable error in answering the two questions raised in the respondent’s motion? Is there a reasonable apprehension of bias as alleged by Mr. Hociung?", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-10", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 21–22", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsection 12(1) and section 135 of the Customs Act read as follows: 12 (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. 12 (1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions réglementaires, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. 135 (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. 135 (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur. Ordinary action Action ordinaire (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions.\n\nRules 101 and 106 as well as some of the other relevant provisions referred to herein are reproduced in Annex 1.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-11", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 23", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is well established that on a motion for summary judgment, the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, apply (Hryniak v. Mauldin, 2014 SCC 7 at paras. 81 and 84). Thus, the standard of correctness applies to questions of law, while questions of fact and of mixed fact and law are reviewed on the standard of palpable and overriding error.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-12", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 24", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "As mentioned earlier, Mr. Hociung’s main argument is that Rule 101(1) allows him to request relief in his action in respect of more than one claim. Pursuant to Rule 101(3), not all parties to the action need have an interest in all relief claimed in the said proceeding. Mr. Hociung submits that if Parliament intended to exclude the application of this Rule to actions instituted pursuant to section 135 of the Customs Act, it would have used explicit language similar to the one used in subsection 81.28(3) of the Excise Tax Act, R.S.C., 1985, c. E-15 (the Excise Tax Act), which deals with actions brought under that section. The relevant portion of the provision reads as follows: (3) An appeal to the Federal Court under this Part is deemed to be an action in the Federal Court to which the Federal Courts Act and the rules made under that Act applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals and except that (3) Un appel à la Cour fédérale en vertu de la présente partie est réputé être une action devant celle-ci à laquelle la Loi sur les Cours fédérales et les règles établies conformément à cette loi s’appliquent comme pour une action ordinaire, sauf dans la mesure où l’appel est modifié par des règles spéciales établies à l’égard de tels appels, sauf que : (a) the rules concerning joinder of parties and causes of action do not apply except to permit the joinder of appeals under this Part; a) les règles concernant la jonction d’instances et de causes d’action ne s’appliquent pas, sauf pour permettre la jonction d’appels en application de la présente partie; […] […]", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-13", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 25–27", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsection 135(2) of the Customs Act clearly indicates that the Rules apply to an action instituted under subsection 135(1), except as varied by special rules made in respect of such actions. The Customs Act does contain some specific provisions such as its subsection 106(3), which deals with stays of actions and other proceedings that could be viewed as special rules within the meaning of subsection 135(2). However, the respondent did not direct us to any provisions of the Customs Act setting a special rule that could preclude the application of Rules 101 and 106. I have not found any.\n\nThe case law holding that in an action pursuant to section 135, a party cannot seek judicial review of decisions other than whether there has been a contravention to the Customs Act is of no help here. None of the decisions relied upon by the Federal Court and the respondent deal with the issue before us or rely on reasoning that could be relevant to the interpretation of the current issue.\n\nThe Rules are very liberal in their treatment of joinders of parties and causes of action. However, this right is subject to the overriding discretion and power of the Court to sever claims as provided by Rule 106. Before severing claims pursuant to that provision, the Court must carefully weigh the prejudice to the plaintiff, if any. Severing claims pursuant to Rule 106 is not the same as dismissing an action for summary judgment. It is a procedural order that is usually followed by appropriate directions detailing how to sever the claims. Certainly, it should be done in a manner that would not preclude a party from pursuing an otherwise valid claim because it would now be time-barred.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-14", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 28–31", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the same manner that the respondent’s motion, which refers to Rule 221 as opposed to Rule 215, was considered a proper motion for summary judgment by the Federal Court, despite this error, Mr. Hociung’s action must be considered for what it is – an action where he has included more than one cause of action and where he seeks more than an appeal of the Minister’s decision under section 135 of the Customs Act.\n\nBecause the Federal Court erred in its conclusion in respect of this first question, it could not simply dismiss the action in its entirety on the sole basis that there had been a contravention to the Customs Act without examining if and how all the causes of action and relief sought were affected by such determination.\n\nI will comment further on what order could be granted on this motion and in this appeal in section V of these reasons after reviewing whether the Federal Court erred in concluding that the coins at issue were “goods” that had to be declared under subsection 12(1) of the Customs Act.\n\nBefore us, Mr. Hociung argues that as the purpose of the Customs Act is to collect custom duties, the obligations set out in section 12 of the Customs Act can only apply to goods on which duties are payable. Even if his coins were “goods”, a conclusion that he also contests, because they were either exempted from taxes or subject to a zero custom duty rate, there was no obligation to report them. I will deal with this argument first. If I find that the obligation to report applies regardless of whether duties are payable, I will review whether as argued by Mr. Hociung, his coins fall outside of the ambit of “goods” as this word is used in section 12.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-15", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 32–34", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having considered the wording of section 12 in its context, harmoniously with the purpose and object of the scheme of the Customs Act and of this particular provision, I agree with the Federal Court that the obligation to declare is distinct from the obligation to pay duties which is dealt with under the title “Duties” starting at section 17 of the Customs Act. The obligation to report is not limited to goods that attract the payment of duties or other taxes.\n\nThere is nothing in the ordinary meaning of the wording of subsection 12(1) that would justify such a limitation.\n\nWhen one considers the wording of subsection 12(1) in the context of section 12 as a whole, subsection 12(7) becomes relevant. It provides that subject to three cumulative conditions, goods described in tariff item 9813.00.00 or 9814.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36 may not be seized as forfeit by reason only that they were not reported under subsection 12(1). It is telling that “goods” that fall within the description of the aforementioned tariff items will only be exempted from such seizure if “their importation is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any act of Parliament, other than this act or the Customs Tariff.” This is so, even if those goods are not charged with duties (see text of this provision in Annex 1).", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-16", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 35–39", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, I cannot agree that the interpretation suggested by Mr. Hociung is mandated by the main purpose of the Customs Act. The officers of the CBSA are the persons charged with determining whether or not duties are payable and whether or not goods can be imported into Canada without any restrictions under other statutes. They cannot fulfill their statutory responsibilities unless goods are reported to them. To claim the benefit on an exemption or a zero rate of duty, one must first report the goods.\n\nSection 13 of the Customs Act also creates another obligation quite distinct from the payment of duties. It is an obligation to answer questions about the goods imported and to present those goods for inspection to an officer of CBSA when required to do so. This obligation arises whether or not duties or other taxes are due.\n\nThen, the Customs Act provides at section 18 who is liable to pay the duties as defined in section 2(1) of the Customs Act (see also The Excise Tax Act, section 212 which refers to persons liable under the Customs Act to pay duties on imported goods confirming that such an obligation arises from the provisions of the Customs Act itself).\n\nThere is no ambiguity, an exemption from the payment of taxes under the Excise Tax Act, or a zero custom duty rate in the Customs Tariff is not an exemption to report under subsection 12(1) of the Customs Act.\n\nIt appears from the case synopsis (Appeal Book, Volume 4 at page 655 and 658) that in the CBSA’s view, subsection 12(7) of the Customs Act did not apply to Mr. Hociung’s coins, which were imported for the first time into Canada. Mr. Hociung did not contest this particular finding. From my review of the description of the tariff items referred to in that provision, it is evident that he indeed had no basis to do so.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-17", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 40–43", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having determined that the obligation to report or declare all goods imported in Canada is not limited to “goods” which are subject to the payment of duties or other taxes, it is clear from the wording of the motion for summary judgment and the respondent’s written representations that the only other question that had to be determined is whether the actual coins seized were “goods” within the meaning of section 12 of the Customs Act.\n\nThere is no need, and it would be unwise for this Court to attempt to give an exhaustive definition of the word “goods”, considering the Customs Act does not contain such an exhaustive definition. Indeed at section 2, it simply states: goods, for greater certainty, includes conveyances, animals and any document in any form; (marchandises) marchandises Leur sont assimilés, selon le contexte, les moyens de transport et les animaux, ainsi que tout document, quel que soit son support. (goods)\n\nThe word “goods” is intended to be used in the broadest sense possible considering that in its ordinary meaning; it would not usually be understood to include “any document in any form”.\n\nNeither party relied on any case law dealing with the ambit of section 12 of the Customs Act or on the legislative evolution of that section. However, Mr. Hociung and the respondent have referred to several statutes, including the Customs Tariff, the Excise Tax Act, the Proceeds of Crime Act, the Currency Act, the Royal Mint Act, R.S.C., 1985, c. R-9 and related regulations. Although I have considered them, I need not refer to all of them for I find that the Customs Tariff provides the most useful indication of the legislator’s intention as to whether coins that have legal tender such as those under consideration are included in the word “goods”.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-18", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 44–45", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Pursuant to section 4 of the Customs Tariff: Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe.\n\nNothing in the Customs Tariff provides otherwise in respect of the word “goods”. It is quite clear when one reads, for example, the definition of “Tariff Item” which basically is a description of “goods”, and section 10 of the Customs Tariff (See Annex 1) which deals with the classification of “goods” in the List of Tariff Provisions, that generally something listed under a Tariff item is within the ambit of the word “goods” in the Customs Act, particularly as used in section 12.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-19", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 46", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "As explained in Canada (Attorney General) v. Igloo Vikski Inc., 2016 2 S.C.R. 80 (Igloo Vikski), the Customs Tariff “implements Canada’s obligation as a party to the International Convention Governing the Harmonized Commodity Description and Coding System…The Convention governs the Harmonized Commodity Description and Coding System (The “Harmonized System”) by which approximately 5,000 commodity groups of imported goods are classified” (Igloo Vikski at para. 3) (my emphasis). This system was developed to foster predictability and stability in classification practices internationally. “The Harmonized System uses an eight-digit classification system for tariff classifications, which is incorporated into the Schedule to the Customs Tariff” (Igloo Vikski at para. 5). Rather than using the example (Live Animals; Animal Products) used in Igloo Vikski, I will refer to some classification items related to what one would ordinarily consider “money” or “currency” such as issued banknotes that are legal tender (Tariff item No. 4907.00.00.12, see Annex 1), coins (Tariff item No. 71.18) including gold coins that are legal tender (Tariff item No. 7118.90.00.10 – see Annex 1), and silver or other metal coins (Tariff item No. 7118.90.00.99). There are other relevant Tariff items, but my point here is that the words “money” and “currency” are not used in the Customs Tariff or in the Customs Act except when a sum of money needs to be paid or value is considered (see for example sections 55, 132 and 133 of the Customs Act). Indeed the Harmonized System is a much more precise classification for imported goods. It is therefore not particularly useful to look at various statutory definitions of “money” or “currency” to construe section 12 of the Customs Act.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-20", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 46–49", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is also unnecessary to examine whether coins could be “financial instruments” under the Excise Tax Act.\n\nHowever, in light of Mr. Hociung’s argument that it would be contradictory to include anything falling within the definition of “currency” under the Proceeds of Crime Act in the definition of “goods” under the Customs Act, I must agree with the Federal Court that the interpretation of the Proceeds of Crime Act it adopted, even if it was not required in my view to do so to answer the question raised in the motion before it, does not result in a conflict between the Proceeds of Crime Act and the Customs Act. Those two statutes can both be applied without contradiction or conflict. The fact that under the Proceeds of Crime Act the obligation to report is more limited – it only applies to currency and monetary instruments over the limit set out in the Reporting Regulations, cannot justify restricting the proper interpretation of section 12 of the Customs Act which Parliament clearly did not see fit to amend when it adopted the Proceeds of Crime Act in 2000.\n\nI therefore conclude that the Federal Court did not err in law when it concluded that the coins were “goods” subject to the obligation to declare provided for in section 12 of the Customs Act.\n\nAs mentioned, to determine this appeal, it is not necessary for this Court to deal with the issue of whether or not the subject coins could fall within the definition of “currency” of the Proceeds of Crime Act in other cases. That said, I note that the respondent did not challenge the findings of the Federal Court in that respect, particularly those found at paragraphs 35 and 53 of the reasons.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-21", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 50–53", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hociung alleges that the Federal Court judge was biased against him. He points specifically to paragraph 16 of the Reasons where the Federal Court states “the plaintiff does not dispute that the issues identified by the defendant are genuine issues. However, the plaintiff submits that there are additional issues raised in the statement of claim to be addressed in the course of the action. I disagree.”\n\nMr. Hociung also indicates that bias can be inferred from the fact that the Federal Court relied on “evidence” that was not relied upon by the parties in paragraphs 58 and 60 of the Reasons. At paragraph 58 of the Reasons, the Federal Court refers to the definition of “goods” at subsection 2(1) of the Customs Act and at paragraph 60 to section 123 of the Excise Tax Act where the word “money” is defined.\n\nThe applicable standard here is a reasonable apprehension of bias (Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at page 394). The apprehension must be a reasonable one and the test is: what would an informed person, viewing the matter realistically and practically – in having thought the matter through – conclude. This is a difficult test to meet. There is a strong presumption that judges are performing their duties in an unbiased way, and cogent evidence must be adduced to support such a serious allegation.\n\nI have no hesitation in concluding that Mr. Hociung’s allegation is baseless. Unfortunately, as is often the case with self-represented litigants, it appears to be the result of a misunderstanding of the law and the task to be performed by a court when required to construe legislation before it.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-22", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 54–56", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "The fact that the Federal Court may have reached the wrong conclusion at paragraph 16 is in no way evidence of a bias, real or apprehended. Otherwise all decisions reversed in appeal or quashed on an application for judicial review based on an error of law or any other reviewable error would raise such an apprehension. This is simply not so.\n\nStatutory provisions, including definitions in statutes put in play by the issues before a court, are not “evidence”. When asked to construe a statute, a court may refer to the provisions that are clearly relevant as they are part of the context it must consider to reach its decision. I also note that there would have been no benefit to seek the parties’ views on those legislative provisions which they allegedly fail to expressly refer to, for they are quite unambiguous, and were clearly relevant to the issues raised by them.\n\nIn fact, when one considers the decision as a whole, especially the fact that the Federal Court dealt with the issue of whether collector coins could be included in the definition of “currency” under the Proceeds of Crime Act, it becomes clear that the Federal Court did not do what an allegedly bias decision maker would be expected to do. It did not accept the interpretation proposed by the respondent. It clearly endeavoured to answer Mr. Hociung’s preoccupation with the CBSA’s restrictive interpretation. Although Mr. Hociung may not agree with the interpretation of the Federal Court, the fact remains that he got more in that respect than he might otherwise have been entitled to on this motion.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-23", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 57–58", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having correctly concluded that there was a contravention to section 12 of the Customs Act, the Federal Court had the power, pursuant to Rule 215(3), to dismiss all the allegations relating to the appeal pursuant to section 135 of the Customs Act as it involves no other genuine issue. Its legal conclusion in respect of section 12 could also be sufficient to justify dismissing the claims for damages based on the allegations that the seizure constituted a fraud and a misapplication of the Customs Act in this case. On the other hand, as mentioned, it could not dismiss the claim based on alleged threats of violence.\n\nAlthough Mr. Hociung has attempted to summarize his various claims at paragraph 14 and again on page 15 of his memorandum of fact and law, I do not consider that this Court had the benefit of sufficient representations by the parties to render the decision that the Federal Court should have rendered had it properly exercised its power under section 215(3) of the Rules. Obviously, this Court cannot simply dismiss the motion for summary judgment, given its conclusion that there was a contravention to section 12 of the Customs Act. Thus, there is little choice but to return the matter to the Federal Court, who will be in a better position to deal with this issue after seeking additional written representations by the parties as this motion was made in writing pursuant to Rule 369.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-24", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 59–62", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, before concluding, I ought to add some comments for the benefit of Mr. Hociung. Now that it is clear that his appeal pursuant to section 135 of the Customs Act and his claims based on fraud and misrepresentations as to the right of the CBSA to seize his coins do not raise any genuine issue for trial, I urge him to seek legal advice so that he may seriously reassess whether he wishes to pursue whatever claims or allegations may remain in his statement of claim.\n\nThe fact that this appeal may be granted in part should not be construed in any manner as meaning that whatever claims or relief ultimately remaining have any chance of success. Clearly at this stage, this Court is not in a position to make such a finding, especially not having heard arguments from either side on the numerous legal issues raised by the melting pot of claims that may remain.\n\nMr. Hociung is a well-educated and intelligent man who clearly devoted much effort to researching the law. However, the fact remains that the issues raised in his action are highly technical and complex.\n\nFor example, he may not appreciate that the Federal Court does not have any inherent criminal jurisdiction to deal with offences under s. 469 of the Criminal Code or to impose penalties under the said Code. Also, in S.A. Metro Vancouver Housing Corp., 2019 SCC 4, the Supreme Court of Canada recently reiterated at paragraph 60 that: [d]eclaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought […].", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-25", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 63–64", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is certainly not clear to me at this stage, given that the only basis on which Mr. Hociung’s coins were seized was a contravention to the Customs Act, that there is any real, as opposed to a theoretical dispute left, and that Mr. Hociung has a genuine interest (in the legal sense) in its resolution. This is why, among other things, legal advice at this stage would be most appropriate. It would also ensure that Mr. Hociung does not unduly expose himself to the payment of court costs should his remaining claims ultimately fail.\n\nThe appeal should be granted in part; the judgment of the Federal Court dismissing the action in its entirety should be quashed. The matter should be returned to the Federal Court for determination of which claims and relief can properly be dismissed on the basis of the Federal Court’s finding that Mr. Hociung has contravened section 12 of the Customs Act and the CBSA was legally entitled to seize his coins under the Customs Act. Obviously, this should not be construed as limiting any other order the Federal Court may choose to issue under Rule 215(3).", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-26", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Given that success was divided on the issues raised in this appeal, I propose that each party pay their own costs. “Johanne Gauthier” J.A. “I agree Wyman W.Webb J.A.” “I agree Marianne Rivoalen J.A.” Annex 1 Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) Interpretation Définitions et champ d’application Definitions Définitions 2(1) In this Act, 2(1) Les définitions qui suivent s’appliquent à la présente loi. […] […] duties means any duties or taxes levied or imposed on imported goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament, but, for the purposes of subsection 3(1), paragraphs 59(3)(b) and 65(1)(b), sections 69 and 73 and subsections 74(1), 75(2) and 76(1), does not include taxes imposed under Part IX of the Excise Tax Act; (droits) droits Les droits ou taxes imposés, en vertu de la Loi de 2001 sur l’accise, de la Loi sur la taxe d’accise, de la Loi sur les mesures spéciales d’importation, du Tarif des douanes ou de toute autre loi fédérale, sur les marchandises importées. En sont exclues, pour l’application du paragraphe 3(1), des alinéas 59(3)b) et 65(1)b), des articles 69 et 73 et des paragraphes 74(1), 75(2) et 76(1), les taxes impos��es en vertu de la partie IX de la Loi sur la taxe d’accise. (duties) […] […] Report of Goods Déclaration Report Déclaration Certain goods not subject to seizure Marchandises soustraites à la saisie-confiscation 12(7) Goods described in tariff item No.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-27", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "9813.00.00 or 9814.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff 12(7) Ne peuvent être saisies à titre de confiscation en vertu de la présente loi, pour la seule raison qu’elles n’ont pas fait l’objet de la déclaration prévue au présent article, les marchandises, visées aux nos tarifaires 9813.00.00 ou 9814.00.00 de la liste des dispositions tarifaires de l’annexe du Tarif des douanes, pour lesquelles les conditions suivantes sont réunies : (a) that are in the actual possession of a person arriving in Canada, or that form part of his baggage, where the person and his baggage are being carried on board the same conveyance, a) elles sont en la possession effective ou parmi les bagages d’une personne se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada; (b) that are not charged with duties, and b) elles ne sont pas passibles de droits; (c) the importation of which is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any Act of Parliament other than this Act or the Customs Tariff may not be seized as forfeit under this Act by reason only that they were not reported under this section. c) leur importation n’est pas prohibée par le Tarif des douanes, ni prohibée, contrôlée ou réglementée sous le régime d’une loi fédérale autre que la présente loi ou le Tarif des douanes.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-28", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] […] Obligation to answer questions and present goods Obligations du déclarant 13 Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall 13 La personne qui déclare, dans le cadre de l’article 12, des marchandises à l’intérieur ou à l’extérieur du Canada, ou qu’un agent intercepte en vertu de l’article 99.1 doit : (a) answer truthfully any question asked by an officer with respect to the goods; and a) répondre véridiquement aux questions que lui pose l’agent sur les marchandises; (b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine. b) à la demande de l’agent, lui présenter les marchandises et les déballer, ainsi que décharger les moyens de transport et en ouvrir les parties, ouvrir ou défaire les colis et autres contenants que l’agent veut examiner. […] […] Presumption of importation Présomption d’importation 18 (1) For the purposes of this section, all goods reported under section 12 shall be deemed to have been imported. 18 (1) Pour l’application du présent article, toutes les marchandises déclarées conformément à l’article 12 sont réputées avoir été importées.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-29", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Liability of person reporting goods short landed Solidarité du déclarant et de son mandant (2) Subject to subsections (3) and 20(2.1), any person who reports goods under section 12, and any person for whom that person acts as agent or employee while so reporting, are jointly and severally or solidarily liable for all duties levied on the goods unless one or the other of them proves, within the time that may be prescribed, that the duties have been paid or that the goods (2) En cas d’application de l’article 12, le déclarant et son mandant ou employeur sont, sous réserve des paragraphes (3) et 20(2.1), solidairement responsables de tous les droits imposés sur les marchandises, sauf si, dans le délai réglementaire, l’un d’eux établit le paiement des droits ou, à propos des marchandises, l’un des faits suivants : (a) were destroyed or lost prior to report or destroyed after report but prior to receipt in a place referred to in paragraph (c) or by a person referred to in paragraph (d); a) elles ont été soit détruites ou perdues avant la déclaration, soit détruites entre le moment de la déclaration et leur réception en un lieu visé à l’alinéa c) ou par la personne visée à l’alinéa d); (b) did not leave the place outside Canada from which they were to have been exported; b) elles n’ont pas quitté le lieu de l’extérieur du Canada d’où elles devaient être exportées; (c) have been received in a customs office, sufferance warehouse, bonded warehouse or duty free shop; c) elles ont été reçues dans un bureau de douane, un entrepôt d’attente, un entrepôt de stockage ou une boutique hors taxes; (d) have been received by a person who transports or causes to be transported within Canada goods in accordance with subsection 20(1); d) elles ont été reçues par une personne qui fait", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-30", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "office de transitaire conformément au paragraphe 20(1); (e) have been exported; or e) elles ont été exportées; (f) have been released. f) elles ont été dédouanées. Rates of duties Taux des droits (3) The rates of duties payable on goods under subsection (2) shall be the rates applicable to the goods at the time they were reported under section 12. (3) Le taux des droits payables sur les marchandises conformément au paragraphe (2) est celui qui leur est applicable au moment où elles font l’objet de la déclaration prévue à l’article 12. Regulations Règlements (4) The Governor in Council may make regulations prescribing the circumstances in which such bonds or other security as may be prescribed may be required from any person who is or may become liable for the payment of duties under this section. (4) Le gouverneur en conseil peut, par règlement, fixer les cautions ou autres garanties susceptibles d’être souscrites par les personnes effectivement ou éventuellement redevables de droits au titre du présent article et déterminer les circonstances de la souscription. Federal Courts Rules, S.O.R./98-106 Joinder of claims Causes d’action multiples 101 (1) Subject to rule 302, a party to a proceeding may request relief against another party to the same proceeding in respect of more than one claim. 101 (1) Sous réserve de la règle 302, une partie à une instance peut faire une demande de réparation contre une autre partie à l’instance à l’égard de deux ou plusieurs causes d’action. Separate capacity Réparation à titre distinct (2) A party may request relief in a separate capacity in respect of different claims in a single proceeding. (2) Une partie peut demander réparation à titre distinct pour diverses causes d’action faisant l’objet d’une instance.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-31", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Interest in all relief not essential Réparation ne visant pas toutes les parties (3) Not all parties to a proceeding need have an interest in all relief claimed in the proceeding. (3) Il n’est pas nécessaire que chacune des parties à l’instance soit visée par toutes les réparations demandées dans le cadre de celle-ci. […] […] Separate determination of claims and issues Instruction distincte des causes d’action 106 Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that 106 Lorsque l’audition de deux ou plusieurs causes d’action ou parties dans une même instance compliquerait indûment ou retarderait le déroulement de celle-ci ou porterait préjudice à une partie, la Cour peut ordonner : (a) claims against one or more parties be pursued separately; a) que les causes d’action contre une ou plusieurs parties soient poursuivies en tant qu’instances distinctes; (b) one or more claims be pursued separately; b) qu’une ou plusieurs causes d’action soient poursuivies en tant qu’instances distinctes; (c) a party be compensated for, or relieved from, attending any part of the proceeding in which the party does not have an interest; or c) qu’une indemnité soit versée à la partie qui doit assister à toute étape de l’instance dans laquelle elle n’a aucun intérêt, ou que la partie soit dispensée d’y assister; (d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party. d) qu’il soit sursis à l’instance engagée contre une partie à la condition que celle-ci soit liée par les conclusions tirées contre une autre partie. Customs Tariff, S.C. 1997, c.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-32", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "36 PART 1 PARTIE 1 Interpretation and General Définitions et dispositions générales Interpretation [EN BLANC] Definitions Définitions 2 (1) The definitions in this subsection apply in this Act. 2 (1) Les définitions qui suivent s’appliquent à la présente loi. […] […] tariff item means a description of goods in the List of Tariff Provisions and the rates of customs duty and the accompanying eight-digit number in that List and, if applicable, in the “F” Staging List. (numéro tarifaire) numéro tarifaire Dénomination de marchandises, figurant sur la liste des dispositions tarifaires, marquée d’un numéro à huit chiffres et les taux figurant sur cette liste et, le cas échéant, au tableau des échelonnements. (tariff item) […] […] Words and expressions in Act Termes de la Loi sur les douanes 4 Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection. 4 Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe. … […] Classification of goods in the List of Tariff Provisions Classement des marchandises dans la liste des dispositions tarifaires 10 (1) Subject to subsection (2), the classification of imported goods under a tariff item shall, unless otherwise provided, be determined in accordance with the General Rules for the Interpretation of the Harmonized System and the Canadian Rules set out in the schedule.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-33", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "10 (1) Sous réserve du paragraphe (2), le classement des marchandises importées dans un numéro tarifaire est effectué, sauf indication contraire, en conformité avec les Règles générales pour l’interprétation du Système harmonisé et les Règles canadiennes énoncées à l’annexe. Classification of “within access commitment” goods Classement de marchandises « dans les limites de l’engagement d’accès » (2) Goods shall not be classified under a tariff item that contains the phrase “within access commitment” unless the goods are imported under the authority of a permit issued under section 8.3 of the Export and Import Permits Act and in compliance with the conditions of the permit. 2) Des marchandises ne peuvent être classées dans un numéro tarifaire comportant la mention « dans les limites de l’engagement d’accès » que dans le cas où leur importation procède d’une licence délivrée en vertu de l’article 8.3 de la Loi sur les licences d’exportation et d’importation et en respecte les conditions.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-34", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Customs Tariff – Schedule Section X: Pulp of Wood or of Other Fibrous Cellulosic Material; Recovered (Waste and Scrap) Paper or Paperboard; Paper and Paperboard and Articles Thereof Section X : Pâtes de bois ou d'autres matières fibreuses cellulosiques; Papier ou carton à recycler (déchets et rebuts); Papier et ses applications 49 PRINTED BOOKS, NEWSPAPERS, PICTURES AND OTHER PRODUCTS OF THE PRINTING INDUSTRY; MANUSCRIPTS, TYPESCRIPTS AND PLANS 49 PRODUITS DE L'ÉDITION, DE LA PRESSE OU DES AUTRES INDUSTRIES GRAPHIQUES; TEXTES MANUSCRITS OU DACTYLOGRAPHIÉS ET PLANS 4907.00.00 Unused postage, revenue or similar stamps of current or new issue in the country in which they have, or will have, a recognized face value; stamp-impressed paper; banknotes; cheque forms; stock, share or bond certificates and similar documents of title. 4907.00.00 Timbres-poste, timbres fiscaux et analogues, non oblitérés, ayant cours ou destinés à avoir cours dans le pays dans lequel ils ont, ou auront, une valeur faciale reconnue; papier timbré; billets de banque; chèques; titres d'actions ou d'obligations et titres similaires. Banknotes being legal tender: Billets de banque, ayant cours légal : 4907.00.00.12 Issued 4907.00.00.12 Émis […] […] Section XIV Chapter 71: Natural or Cultured Pearls, Precious or Semi-precious Stones, Precious Metals, Metals Clad with Precious Metal, and Articles Thereof; Imitation Jewellery; Coin Section XIV Chapitre 71 : Perles fines ou de culture, pierres gemmes ou similaires, métaux précieux, plaqués ou doublés de métaux précieux et ouvrages en ces matières; bijouterie de fantaisie; monnaies 7118 Coin 7118 Monnaies.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-35", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] […] 7118.90.00 Other 7118.90.00 Autres 7118.90.00.10 Gold coin 7118.90.00.10 Pièces de monnaie d'or 7118.90.00.91 Canadian coin 7118.90.00.91 Monnaie canadienne […] […] 7118.90.00.99 Other 7118.90.00.99 Autres Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, c. 17 Currency and monetary instruments Déclaration 12 (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. 12 (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur égale ou supérieure au montant réglementaire. Limitation Exception (2) A person or entity is not required to make a report under subsection (1) in respect of an activity if the prescribed conditions are met in respect of the person, entity or activity, and if the person or entity satisfies an officer that those conditions have been met. (2) Une personne ou une entité n’est pas tenue de faire une déclaration en vertu du paragraphe (1) à l’égard d’une importation ou d’une exportation si les conditions réglementaires sont réunies à l’égard de la personne, de l’entité, de l’importation ou de l’exportation et si la personne ou l’entité convainc un agent de ce fait. Sending reports to Centre Transmission au Centre (5) The Canada Border Services Agency shall send the reports they receive under subsection (1) to the Centre.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-36", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It shall also create an electronic version of the information contained in each report, in the format specified by the Centre, and send it to the Centre by the electronic means specified by the Centre. (5) L’Agence des services frontaliers du Canada fait parvenir au Centre les déclarations recueillies en application du paragraphe (1) et établit, dans la forme prévue par le Centre, une version électronique des renseignements contenus dans chaque déclaration qu’elle transmet au Centre par les moyens électroniques prévus par celui-ci. Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 Minimum Value of Currency or Monetary Instruments Valeur minimale des espèces ou effets 2 (1) For the purposes of reporting the importation or exportation of currency or monetary instruments of a certain value under subsection 12(1) of the Act, the prescribed amount is $10,000. 2 (1) Pour l’application du paragraphe 12(1) de la Loi, les espèces ou effets dont l’importation ou l’exportation doit être déclarée doivent avoir une valeur égale ou supérieure à 10 000 $.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-37", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) The prescribed amount is in Canadian dollars or its equivalent in a foreign currency, based on (2) La valeur de 10 000 $ est exprimée en dollars canadiens ou en son équivalent en devises selon : (a) the official conversion rate of the Bank of Canada as published in the Bank of Canada’s Daily Memorandum of Exchange Rates that is in effect at the time of importation or exportation; or a) le taux de conversion officiel de la Banque du Canada publié dans son Bulletin quotidien des taux de change en vigueur à la date de l’importation ou de l’exportation; (b) if no official conversion rate is set out in that publication for that currency, the conversion rate that the person or entity would use for that currency in the normal course of business at the time of the importation or exportation. b) dans le cas où la devise ne figure pas dans ce bulletin, le taux de conversion que le déclarant utiliserait dans le cours normal de ses activités à cette date. FEDERAL COURT OF APPEAL", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-32333-1", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 1–3", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The primary issue on this appeal is whether the Immigration Division properly found that, notwithstanding he was under the age of eighteen years at the relevant time (a minor), there were reasonable grounds to believe that the appellant, Piran Ahmadi Poshteh, was a member of a terrorist organization for purposes of determining whether he was inadmissible to Canada on security grounds under paragraph 34(1)(f) of the Immigration Refugee and Protection Act, S.C. 2001, c. 27. Paragraph 34(1)(f) provides: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for . . . (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_: . . . f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c). FACTS\n\nThe following facts are taken from the decision of the Immigration Division in Mr. Poshteh's admissibility hearing. They are not in dispute.\n\nMr. Poshteh is a citizen of Iran. His father had been a member of the Mujahedin-e-Khalq (MEK), an organization in respect of which there are reasonable grounds to believe engages, has engaged or will engage in terrorism. In 1999, when Mr. Poshteh was 15, his father died. Mr. Poshteh blamed the Iranian government for his father's death.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-2", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 4–6", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Poshteh wanted to join the MEK to help achieve his father's goal, which he understood was to overthrow the Iranian government. However, when he approached his father's friend, whom he believed was a member of the MEK, the friend would not allow him to join, although he did allow him to participate through the dissemination of propaganda.\n\nMr. Poshteh and a friend distributed MEK propaganda leaflets in Tehran one or two times per month. He carried on this activity from February 2000 until June 2002, when he was almost eighteen (seventeen years and eleven months). He ceased this activity when he was arrested and detained for two weeks by the police. Aside from distributing the propaganda leaflets, he had no other involvement in MEK activities.\n\nMr. Poshteh arrived in Canada on September 16, 2002, and was interviewed by an immigration officer. Pursuant to subsection 44(1) of the Act, the officer reported, among other things, that Mr. Poshteh was inadmissible to Canada under paragraph 34(1)(f) of the Act. The immigration officer's report was transmitted to the Minister of Citizenship and Immigration under subsection 44(1) of the Act. The Minister referred the report to the Immigration Division for an admissibility hearing under subsection 44(2) of the Act. Following a hearing, the Immigration Division found that there were reasonable grounds to believe that Mr. Poshteh was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism and that Mr. Poshteh therefore was not admissible to Canada pursuant to 34(1)(f) of the Act. JUDICIAL REVIEW AND CERTIFIED QUESTION", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-3", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 7–10", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Poshteh sought judicial review in the Federal Court. Gibson J. found no reviewable error by the Immigration Division and dismissed the judicial review. However, he certified the following question for appeal pursuant to paragraph 74(d) of the Act: Having regard to section 7 of the Canadian Charter of Rights and Freedoms and international human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, is there, on the particular facts underlying this application for judicial review, any distinction in liability between the Applicant who was a minor at all times relevant to his activities on behalf of the Mujahedin-e-Khalq and an adult undertaking equivalent activities on behalf of such an organization without being a formal member of that organization, for inadmissibility under subsection 34(1) of the Immigration and Refugee Protection Act?\n\nThis appeal arises from that certified question. ISSUES\n\nThere are two issues in the appeal: 1. whether, irrespective of his age, there are reasonable grounds to believe that Mr. Poshteh was a member of the MEK; and 2. whether Mr. Poshteh's status as a minor is a relevant consideration under paragraph 34(1)(f) of the Act and if so, what considerations are to be taken into account in determining membership by a minor.\n\nWhether there are reasonable grounds to believe that the MEK engages, has engaged or will engage in terrorism is not in issue. The Immigration Division found there were reasonable grounds to so believe and this determination is not challenged by Mr. Poshteh. POSITION OF MR. POSHTEH", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-4", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 11–14", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Poshteh says that the test for membership in a terrorist organization should be based on the degree of integration of the individual within the organization. He says he was not sufficiently integrated into the MEK to be considered a member.\n\nHowever, his primary argument is that in the case of a minor, the term \"member\" in paragraph 34(1)(f) should be construed narrowly, interpreted as applying only to individuals directly involved in violence or who hold leadership positions in the terrorist organization. Such an interpretation would mean that paragraph 34(1)(f) would be inapplicable to Mr. Poshteh because his activities were not violent and because he was not acting in a leadership capacity. POSITION OF THE INTERVENER\n\nThe intervener, Canadian Foundation for Children, Youth and the Law, takes the position that \"the decision as to whether or not the pamphleting activities of a child make the person inadmissible as a member of a terrorist organization must be made in the best interests of the child, whether the child seeks asylum in Canada or seeks asylum after becoming a rehabilitated young adult.\" ANALYSIS Section 33\n\nSection 33 provides: 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-5", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 15–19", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The parties do not take issue with the test for inadmissibility applied by the Immigration Division - that there are reasonable grounds to believe that the foreign national was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism. For the sake of simplicity, I will take the liberty of referring to the security grounds for inadmissibility in this case as \"being a member of a terrorist organization.\" Standard of Review - Decision of the Immigration Division\n\nThere is disagreement between the parties as to whether the standard of review that should be applied by the Federal Court to the Immigration Division's decision is reasonableness or correctness. Based on the approach of the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, a pragmatic and functional analysis is required.\n\nA serious question of general importance arising from the decision of the Immigration Division has been certified under paragraph 74(d) of the Act. Although the question refers to \"the particular facts underlying this application for judicial review,\" I infer that the question was certified for appeal because, in the opinion of Gibson J., the application of paragraph 34(1)(f) to minors is a question of general importance. This generally suggests a less deferential standard of review.\n\nThe Immigration Division has expertise in fact-finding which requires great deference to its findings of fact. In this case, the findings of fact by the Immigration Division are not in dispute.\n\nThe issues here are not \"polycentric,\" but rather are ones in which the state is a protagonist against the individual. This supports less deference on both issues.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-6", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 20–21", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Both issues involve questions of mixed fact and law. However, the legal components of the issues can be extricated from the mixed questions. In the case of the first issue, the legal question is the interpretation of the term \"member\" in paragraph 34(1)(f). In the case of the second issue, the legal question is whether Mr. Poshteh's status as a minor is to be taken into account and if so, what considerations are relevant.\n\nParagraph 34(1)(f) forms part of the Immigration Division's constituent legislation. The question of membership in a terrorist organization is not something that is extraneous to its regular work. The expertise of the Immigration Division is in, among other things, determining whether criteria for inadmissibility have been established. These criteria include membership in a terrorist organization. Therefore, the interpretation of the term \"member\" in paragraph 34(1)(f) is, I think, a legal matter with respect to which the Immigration Division has some expertise. Finally, I would note that the interpretation of the term \"member\" in paragraph 34(1)(f), while necessary to address, is not a matter squarely within the question certified by Gibson J. Therefore, some deference is due the Immigration Division on this legal issue.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-7", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 22–24", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, whether Mr. Poshteh's status as a minor is to be taken into account and if so, what considerations are relevant, is not a legal question that the Immigration Division would regularly encounter. There is no reference to age in paragraph 34(1)(f). On the other hand, the courts do encounter cases in which the application of a law to a minor is a relevant consideration. Whether age is to be taken into account and if so, in what manner are matters in which the expertise of the Court is greater than that of the Immigration Division, suggesting less deference on this issue.\n\nHaving regard to the pragmatic and functional considerations to which I have adverted, I conclude: (a) the question of the interpretation of the term \"member\" in paragraph 34(1)(f) is reviewable on a standard of reasonableness; and (b) the question of whether age is to be considered under paragraph 34(1)(f) and if so, the manner of doing so is reviewable on a standard of correctness.\n\nApplying the relevant standards of review to the legal questions, should the Court find it necessary to intervene, the Court will either quash the Immigration Division's decision if it finds that Mr. Poshteh could not be a member of a terrorist organization or it will remit the matter to the Immigration Division for redetermination having regard to the proper legal tests. However, should the Court not find the Immigration Division's legal determinations with respect to the term \"member\" and Mr. Poshteh's minor status to be unreasonable or incorrect, respectively, the questions of mixed fact and law, namely the application of the law to the facts by the Immigration Division, should be reviewed on a reasonableness standard. Standard of Review - Decision of the Federal Court", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-8", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 25–26", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The standard of review by this Court of the Federal Court decision is correctness on a question of law and palpable and overriding error on a question of fact or mixed law and fact. (See Housen v. Nikolaisen, [2002] 2 S.C.R. 235 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.) Issue 1: Member - Law\n\nI now turn to whether, without regard for Mr. Poshteh's age, his activities for the MEK could constitute him a member of that organization. If an adult would not be considered a member on the facts applicable to Mr. Poshteh, it will be unnecessary to address the question of age. Only if his activities would have resulted in him being found to be a member if he were an adult at the relevant time, will it be necessary to consider whether his status as a minor at that time requires a different conclusion.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-9", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "para 27", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is no definition of the term \"member\" in the Act. The courts have not established a precise and exhaustive definition of the term. In interpreting the term \"member\" in the former Immigration Act, R.S.C. 1985, c. I-2, the Trial Division (as it then was) has said that the term is to be given an unrestricted and broad interpretation. The rationale for such an approach is set out in Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 at paragraph 52 (T.D.): [52] The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of s. 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term \"member\" to be given an unrestricted and broad interpretation.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-10", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 28–30", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The same considerations apply to paragraph 34(1)(f) of the Immigration Refugee and Protection Act. As was the case in the Immigration Act, under subsection 34(2) of the Immigration and Refugee Protection Act, membership in a terrorist organization does not constitute inadmissibility if the individual in question satisfies the Minister that their presence in Canada would not be detrimental to the national interest. Subsection 34(2) provides: 34(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. 34(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national. Thus, under subsection 34(2), the Minister has the discretion to exclude the individual from the operation of paragraph 34(1)(f).\n\nBased on the rationale in Singh and, in particular, on the availability of an exemption from the operation of paragraph 34(1)(f) in appropriate cases, I am satisfied that the term \"member\" under the Act should continue to be interpreted broadly.\n\nNonetheless, Mr. Poshteh says that the Immigration Division erred by determining the question of membership on the basis of the nature and duration of his activities, while failing to consider his level of integration within the organization. He says the key consideration for membership is a significant level of integration within an organization. He submits that adopting significant integration as the test for membership would promote more consistent decision-making by the Immigration Division.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-11", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 31–32", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "I am not persuaded that Mr. Poshteh's significant integration test would achieve the consistency that he says is presently lacking in Immigration Division decisions. A significant integration test would still require an assessment of the facts and a judgment as to whether the degree of integration in any particular case was sufficient to constitute the individual a member. More importantly, a test for membership based on significant integration would not be consistent with the broad interpretation to be given to the term \"member.\"\n\nThe Immigration Division adopted a broad approach to the interpretation of the term \"member.\" It was not unreasonable for it to have done so. Issue 1: Member - Facts", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-12", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 33–34", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division's factual findings are the following: (a) Mr. Poshteh's involvement with the MEK consisted solely of disseminating propaganda; (b) he disseminated propaganda for approximately two years; (c) at his hearing he referred to himself at one point as a member; (d) his involvement went beyond that of a mere sympathizer or supporter; (e) he shared in the MEK's overriding goal to overthrow the Iranian government; (f) although he was not formally enlisted in the MEK, it was not for lack of trying. He desperately wished to enlist in some formal fashion. He claimed he was denied that permission, but was allowed for a period of two years to engage in an activity for the benefit of the MEK; (g) propaganda is an important part of the MEK. The purpose is partly to educate but also to enlist sympathy and support for the cause. Support could range from funding, to enlistment of new members, to creating a climate where activities, violent or otherwise, could proceed; and (h) the distribution of propaganda twenty-four to forty-eight times over a period of two years was a significant level of activity and was not marginal or minimal.\n\nBased on these findings, the Immigration Division concluded that the functions Mr. Poshteh performed were equal to those of a member of the MEK and that he fulfilled the role of member for purposes of paragraph 34(1)(f) of the Act.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-13", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 35–37", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Poshteh gives a number of reasons why he was not significantly integrated within the MEK. He says he never received initiation, indoctrination or training. He never attended meetings. He did not know where the meetings were held or the hierarchy of the group. He had no decision-making power. He did not create the propaganda. He did not recruit members or raise funds. His only contacts were his father's friend and the individual with whom he distributed the propaganda. He says he was not involved in influential media such as radio, television or newspaper propaganda. In addition, the flyers were not distributed more broadly than in local neighbourhoods and schools. Given these circumstances, Mr. Poshteh says his involvement was limited.\n\nIn any given case, it will always be possible to say that although a number of factors support a membership finding, a number point away from membership. An assessment of these facts is within the expertise of the Immigration Division.\n\nHere, the Immigration Division based its conclusion on what appears to be a thorough assessment of the evidence. It considered what Mr. Poshteh did, the length of his involvement with the MEK, his attempt to become a formal member and the effect of distributing propaganda. It concluded that Mr. Poshteh's activity was not minimal or marginal and was sufficient to constitute membership for purposes of paragraph 34(1)(f).", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-14", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 38–40", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Based upon a somewhat probing examination, I cannot say that the reasons of the Immigration Division do not adequately support its conclusion that Mr. Poshteh was a member of the MEK for purposes of paragraph 34(1)(f) (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraphs 48-56). Not finding the Immigration Division's decision to be unreasonable, I conclude that Gibson J. did not err in deferring to that decision. Issue 2: Age - Law\n\nI now turn to the second issue. Mr. Poshteh does not ask for a blanket exemption from paragraph 34(1)(f) for minors. Rather, his argument is that having regard to his status as a minor, he should not be considered to be a member unless he was involved in violent activities or was a leader of the organization.\n\nThere is no express exemption for minors in section 34. To find a blanket exemption for minors would require reading words into paragraph 34(1)(f) that were not put there by Parliament. The Court must take the statute as it finds it. Therefore, I agree with Mr. Poshteh that there is no blanket exemption from paragraph 34(1)(f) for minors.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-15", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 41–42", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "By contrast, subsection 36(3)(e) of the Act provides that an individual cannot be found to be criminally inadmissible for an offence under the Young Offenders Act. (The Young Offenders Act was repealed on April 1, 2003, and replaced by the Youth Criminal Justice Act, S.C. 2002, c. 1.) Paragraph 36(3)(e) provides: (3) The following provisions govern subsections (1) and (2): . . . (e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act. (3) Les dispositions suivantes régissent l'application des paragraphes (1) et (2)_: . . . e) l'interdiction de territoire ne peut être fondée sur une infraction qualifiée de contravention en vertu de la Loi sur les contraventions ni sur une infraction à la Loi sur les jeunes contrevenants. Essentially, this means that for most offences committed by a minor, the individual will not be found to be criminally inadmissible. There is no similar provision that would provide for a blanket age exemption in section 34.\n\nHowever, I do not say that Parliament's silence on the subject of age in section 34 implies that the individual's status as a minor is irrelevant to the question of membership. An individual's status as a minor is widely recognized in both statute and common law and I see no reason why it should be ignored for purposes of paragraph 34(1)(f). (See R. v. Hill, [1986] 1 S.C.R. 313 at 348-351 per Wilson J. dissenting. The majority reasons are not in conflict with her general comments on this point.)", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-16", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 43–44", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nonetheless, that recognition of an individual's status as a minor does not in all cases require a blanket exemption from application of a law to the minor. That is particularly the case where the status of a minor is recognized by the common law but not by statute. In the case of common law recognition, capacity is often viewed on a continuum on which the presumption of capacity increases with the age of the minor. (In the context of criminal law, see R. v. Chaulk, [1990] 3 S.C.R. 1303 at 1319-1320 per Lamer C.J.; in the context of tort law, see R. v. Hill, supra, per Wilson J. at pages 350-351.)\n\nA statutory blanket exemption or exclusion in respect of minors is often a proxy for individual assessments of matters such as maturity, responsibility or mental capacity to make an informed decision, where such individual assessments are impractical. In the case of voting rights, for example, it has been held that setting the voting age at eighteen is to ensure, as far as possible, that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government (see Fitzgerald (Next friend of) v. Alberta, [2003] 3 W.W.R. 752 (Q.B.), aff'd [2004] 6 W.W.R. 416 (C.A.), leave to appeal to S.C.C. refused, 6 January 2005). It would obviously not be possible to conduct such an assessment on an individual basis for voting purposes. A bright-line age test is therefore a practical way to deal with the matter.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-17", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 45–47", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Different considerations apply in respect of paragraph 34(1)(f). Here, the Act expressly provides for individual assessments for admissibility. That is not to say that Parliament could not, as it did in section 36, provide for a blanket age exemption in section 34. But because Parliament did not do so, an individual's status as a minor is simply a further consideration in the individual assessment made under paragraph 34(1)(f).\n\nHaving concluded that, although there is no blanket exemption for minors, an individual's status as a minor is still relevant under paragraph 34(1)(f), the next question is what considerations are to be taken into account.\n\nIt seems to me that in the context of age, relevant considerations in paragraph 34(1)(f) would be matters such as whether the minor has the requisite knowledge or mental capacity to understand the nature and effect of his actions. It is open to the minor to advance those considerations and whatever other arguments support an exemption from paragraph 34(1)(f) on the basis of his status as a minor and to provide evidence in support of those arguments.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-18", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 48–49", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "While a finding of membership in a terrorist organization may be possible for a minor of any age, it would be highly unusual for there to be a finding of membership in the case of a young child, say, under the age of twelve. Although it will depend on the evidence in each case, it would seem self-evident that in the case of such children, the presumption would be that they do not possess the requisite knowledge or mental capacity to understand the nature and effect of their actions. In the case of young children, the age of the child itself would be prima facie evidence of an absence of the requisite knowledge or mental capacity. There would be an obligation on the Immigration Division to carefully consider the level of understanding of such a child.\n\nIndeed, at common law there was an irrebuttable presumption that a child under the age of seven was incapable of possessing criminal intent; once a child reached the age of fourteen, the common law presumption of criminal incapacity disappeared and was replaced by a rebuttable presumption of capacity for criminal intent. (See R. v. Chaulk, supra, at page 1319.) Today, under section 13 of the Criminal Code, R.S.C. 1985, c. C-46, a child shall not be convicted of an offence in respect of an act or omission on his part while under the age of twelve years. Section 13 provides: 13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. 13. Nul ne peut être déclaré coupable d'une infraction à l'égard d'un acte ou d'une omission de sa part lorsqu'il était âgé de moins de douze ans.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-19", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 50–52", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Over the age of eleven, minors are held responsible for their criminal actions. The Youth Criminal Justice Act provides for a unique system of procedures, courts and dispositions from that provided in the Criminal Code, but it does not provide an exemption from criminal responsibility for a minor's actions.\n\nFor purposes of determining membership in a terrorist organization by a minor, the requisite knowledge or mental capacity should be viewed on a continuum. Just as there would be a presumption against the requisite knowledge or mental capacity in the case of young children, there would be a presumption that the closer the minor is to eighteen years of age, the greater will be the likelihood that the minor possesses the requisite knowledge or mental capacity.\n\nI have said that it is open to the minor to raise whatever factors he considers relevant in the particular case. For example, issues of duress or coercion may be relevant. However, these issues do not arise in this case since it was Mr. Poshteh who approached his father's friend, asking to become a member of the MEK.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-20", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 53–55", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "I would agree with Mr. Poshteh that it would be very difficult for a minor to argue that he should not be found to be a member if he had been directly involved in violent activities or had held a leadership role in the terrorist organization. However, lesser involvement may still result in a finding of membership. It is not necessarily the nature of the involvement with the terrorist organization that will determine the issue, although those considerations may be relevant. Rather, matters such as knowledge or mental capacity are the types of considerations to be taken into account in deciding whether a determination of membership in a terrorist organization in the case of a minor is to be different than in the case of an adult.\n\nThe Immigration Division's reasons demonstrate that it dealt with Mr. Poshteh's arguments based on age and it was correct in so doing. Even though Mr. Poshteh did not make explicit lack of knowledge or mental capacity arguments, the Immigration Division's reasons do inferentially deal with his knowledge and mental capacity. Issue 2: Age - Facts\n\nIn acknowledging and dealing with Mr. Poshteh's arguments based on age, the Immigration Division concluded that: 1. Mr. Poshteh was not ignorant of the violent activities of the MEK; 2. he became involved with the MEK of his own volition; 3. his involvement may have been initially motivated by passion but it continued for two years; and 4. he made his own decisions, even against the advice of adults.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-21", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 56–57", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division found that Mr. Poshteh continued his activity with the MEK until he was seventeen years and eleven months. Where a minor of that age knows of the violent activity of the organization, becomes involved of his own volition, continues for over two years and leaves only after he is arrested, it cannot be said that it is unreasonable for the Immigration Division not to accept his arguments based on his status as a minor and to find him to be a member of the terrorist organization. The Best Interests of the Child\n\nMr. Poshteh and the intervener argue that in the case of a minor, the Immigration Division must take into account the best interests of the child. Indeed, paragraph 3(3)(f) requires that the Act be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. Paragraph 3(3)(f) provides: 3(3) This Act is to be construed and applied in a manner that . . . (f) complies with international human rights instruments to which Canada is signatory. 3(3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet_: . . . f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-22", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 58–60", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "One such instrument is the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3 (entered into force 2 September 1990). Article 3 requires that in all actions of courts of law and administrative authorities, the best interests of the child shall be a primary consideration. Article 3.1 provides: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary concern.\n\nI do not think that the Convention on the Rights of the Child is relevant in this case. For purposes of the Convention, the action in this case is the proceeding and decision of the Immigration Division. However, at the time the matter was considered by the Immigration Division, Mr. Poshteh was no longer a minor. He was eighteen when he arrived in Canada. As I read the Convention, it is concerned with the interests of children while they are children. It does not purport to confer rights on adults.\n\nIt is important in this case to distinguish between considerations such as whether an individual has the knowledge or mental capacity to understand the nature and effect of his actions, which are relevant, and the \"best interests of the child\" considerations under the Convention, which are not relevant. Mr. Poshteh was an adult when he invoked and became subject to Canada's immigration laws and procedures and therefore he cannot rely on the Convention. Charter Rights", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-23", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 61–62", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division found that Mr. Poshteh's section 7 Charter rights were not engaged. In his factum, Mr. Poshteh says that he \"... does not seek to challenge that finding in this proceeding ...\". However, he argues that even though his life, liberty and security of the person rights are not engaged, Parliament's intention is that the Act is to be construed in a manner consistent with principles of fundamental justice. Later in his factum, Mr. Poshteh submits that the Charter and other documents \"are unanimous on the principle that the liability of a minor cannot simply mirror that of an adult but rather must provide special treatment.\"\n\nThe principles of fundamental justice in section 7 of the Charter are not independent self-standing notions. They are to be considered only when it is first demonstrated that an individual is being deprived of the right to life, liberty or security of the person. It is the deprivation that must be in accordance with the principles of fundamental justice. (See, for example, Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 47.)", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-24", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 63–64", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Here, all that is being determined is whether Mr. Poshteh is inadmissible to Canada on the grounds of his membership in a terrorist organization. The authorities are to the effect that a finding of inadmissibility does not engage an individual's section 7 Charter rights. (See, for example, Barrera v. Canada (MCI) (1992), 99 D.L.R. (4th) 264 (F.C.A.).) A number of proceedings may yet take place before he reaches the stage at which his deportation from Canada may occur. For example, Mr. Poshteh may invoke subsection 34(2) to try to satisfy the Minister that his presence in Canada is not detrimental to the national interest. Therefore, fundamental justice in section 7 of the Charter is not of application in the determination to be made under paragraph 34(1)(f) of the Act. CONCLUSION\n\nI would answer the certified question in the following manner: (a) section 7 of the Charter is not engaged in the determination to be made by the Immigration Division under paragraph 34(1)(f) of the Act; (b) the Convention on the Rights of the Child does not apply when the proceedings and decision involving an individual take place when the individual is no longer a minor; (c) an individual's status as a minor is relevant and there may be a distinction between a minor and an adult in the determination of whether the individual is a member of a terrorist organization under paragraph 34(1)(f) of the Act if the minor provides evidence to support such a distinction; and (d) in the present case, Mr. Poshteh's age was properly considered by the Immigration Division and it was open to the Immigration Division to determine that he was a member of a terrorist organization for purposes of paragraph 34(1)(f) of the Act.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-25", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 65–66", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division did not make unreasonable findings in concluding that Mr. Poshteh was inadmissible under paragraph 34(1)(f) of the Act. There was no error of law or palpable and overriding error of fact in the reasons of Gibson J.\n\nThe appeal should be dismissed with costs. \"Marshall Rothstein\" J.A. \"I agree Marc Noël, J.A.\" \"I agree B. Malone, J.A.\" FEDERAL COURT OF APPEAL", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-35576-1", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 1–5", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Jeremy Hinzman and Brandon Hughey voluntarily enlisted to serve in the United States military. During their time in the military, they developed an objection to the war in Iraq, resulting in their belief that it is illegal and immoral. After learning that their units would be deployed to Iraq, they deserted the military and came to Canada, where they made claims for refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (the “Board”) considered the claims of Mr. Hinzman and Mr. Hughey (collectively referred to in these Reasons as the “appellants”) for refugee status and held that the appellants are not Convention refugees or persons in need of protection, as set out in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The Board therefore concluded that the appellants are not entitled to stay in Canada as refugees.\n\nIn the Federal Court, Mactavish J. dismissed applications for judicial review by the appellants and certified a question which appears later in these Reasons (Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421).\n\nThe appellants now appeal to this Court. However, for the reasons that follow, I see no reason to depart from the conclusions of the Board and Mactavish J. that the appellants are not entitled to refugee status. Accordingly, I would dismiss the appeals.\n\nThese Reasons are given in respect of both appeals (A-182-06 and A-185-06). A copy will be placed in the file of each appeal. FACTS IN THE HINZMAN APPEAL", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-2", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 6–9", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In late 2000, Jeremy Hinzman enlisted for a four-year term in the U.S. Army. Mr. Hinzman’s decision to join the military was motivated both by the fact that the military would provide him with financial assistance that would allow him to attend university upon completion of his term of enlistment and by his belief that the Army had a higher or noble purpose of doing good things. He chose specifically to become an infantryman because he wanted “to experience the essence of the Army.”\n\nPrior to enlisting in the Army, Mr. Hinzman had apparently explored Buddhism. Nevertheless, at the outset of his military service, it appears he did not have any reservations about bearing arms or otherwise fulfilling his duties as a soldier.\n\nHowever, during basic training, Mr. Hinzman testified that he underwent a process of desentization intended to dehumanize the enemy that caused him to start to question his involvement with the military.\n\nAfter completing training, Mr. Hinzman was posted to Fort Bragg. Although he excelled as a soldier, Mr. Hinzman continued to question his impending involvement in combat. He testified before the Board that he had been “kind of living a double life,” outwardly indicating that he was a “soldier’s soldier” but inwardly developing concerns about killing. Ultimately, he concluded that he could not kill, and that all violence does is perpetuate more violence.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-3", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 10–11", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Consequently, Mr. Hinzman applied on August 2, 2002 for reassignment to non-combat duties as a conscientious objector, in accordance with Army Regulation 600-43. Although he indicated on his application that he was not a member of a religious sect or organization, he noted that over the past few years, he had been discovering a world-view framed by the teachings of Buddhism, which led to his decision that he was unable to kill. He also stated in the application that in January 2002, he and his wife had begun attending meetings of The Religious Society of Friends, or Quakers, a church espousing pacifism. In accordance with the military’s conscientious objector procedures, within three days of submitting his application for conscientious objector status, Mr. Hinzman was reassigned to guard the entrance gate at the Fort Bragg base.\n\nFor reasons that are unclear, Mr. Hinzman’s first conscientious objector application was not dealt with on its merits. Accordingly, he submitted a new application in October 2002, after he had learned that his unit would be deployed to Afghanistan. Mr. Hinzman believed that the United States had a legitimate basis for going into Afghanistan because he was satisfied that there were links between the Taliban regime then in power in Afghanistan and al-Qaeda, the terrorist organization responsible for the September 11, 2001 attacks on the United States. Mr. Hinzman therefore went to Afghanistan, where he was assigned to kitchen duties because of his pending application for conscientious objector status.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-4", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 12–13", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "A hearing was held in respect of Mr. Hinzman’s conscientious objector application while he was in Afghanistan, on April 2, 2003. Although First Lieutenant Dennis Fitzgerald, who was appointed investigating officer, was satisfied that Mr. Hinzman sincerely opposes war on a philosophical, societal and intellectual level, he concluded that Mr. Hinzman did not meet the definition of conscientious objector, as outlined in Army Regulation 600-43, because Mr. Hinzman had indicated that while he was unable to conduct offensive operations in combat, he would conduct defensive and peacekeeping operations. The First Lieutenant therefore denied Mr. Hinzman’s conscientious objector application. First Lieutenant Fitzgerald also held that Mr. Hinzman was using his conscientious objector application to get out of the infantry, a conclusion based, in part, on the negative and apparently erroneous, inference drawn from the First Lieutenant’s belief that Mr. Hinzman did not claim conscientious objector status until after he learned he would be deployed to Afghanistan.\n\nAlthough Mr. Hinzman has complained about his inability to call witnesses at the hearing because the hearing was held in Afghanistan and the witnesses he would have called were in the United States, he did not request an adjournment of the hearing, as he was permitted to do under Army Regulation 600-43. Moreover, Mr. Hinzman chose not to exercise his right to appeal the First Lieutenant’s decision, indicating that upon returning to the United States he was worn down and felt there would be no point in pursuing the matter.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-5", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 14–18", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hinzman subsequently returned to the United States and resumed his normal duties as an infantryman. In December 2003, he learned that his unit would be deployed to Iraq on January 16, 2004. He was determined, however, not to fight in Iraq because he believed the United States military action there to be illegal and immoral. Consequently, Mr. Hinzman decided to desert.\n\nMr. Hinzman, along with his wife and son, arrived in Canada on January 3, 2004 and filed for refugee status approximately three weeks later. His refugee claim was based on his beliefs described above.\n\nMr. Hinzman maintains that, if returned to the United States, he will be prosecuted for desertion and likely receive a sentence of one to five years in a military prison. FACTS IN THE HUGHEY APPEAL\n\nBrandon Hughey volunteered to join the U.S. Army on July 30, 2002 at the age of 17 years, while still a student in high school. He reported for duty on July 9, 2003. Like Mr. Hinzman, he enlisted for a period of four years. Mr. Hughey testified that he joined the military to access financial assistance that would enable him to go to college and because he believed that some things were worth fighting for.\n\nMr. Hughey learned of the war in Iraq while he was in basic training. Although he originally assumed the war in Iraq could be justified, his opinion changed over time, so that he too believed that the war in Iraq was illegal.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-6", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 19–21", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hughey testified that while on approved leave from his unit from November 20, 2003 to December 18, 2003 he conducted research about the U.S. military action in Iraq that further entrenched his opposition to the war. Upon his return to his duty station, Fort Hood, Mr. Hughey told his non-commissioned staff sergeant that he did not think the military action in Iraq was morally right and asked the staff sergeant for assistance in seeking a discharge from the military. Mr. Hughey was told to stop thinking so much, that he had signed a contract, and that there was nothing that the superior officer was going to do to help accommodate his request for a discharge. A similar appeal by Mr. Hughey to another superior officer on a later occasion elicited a similar response.\n\nThrough research on the internet, Mr. Hughey learned of an anti-war activist named Carl Rising-Moore who was willing to help soldiers escape the military. After Mr. Hughey contacted him in February 2004, Mr. Rising-Moore agreed to help Mr. Hughey get to Canada and explained that Mr. Hughey’s only option would be to apply for refugee status on his arrival.\n\nWhile Mr. Hughey and Mr. Rising-Moore were exchanging e-mails, Mr. Hughey learned that he would be deployed to Iraq. He therefore left his base and arrived in Canada with Mr. Rising-Moore on March 5, 2004. Mr. Hughey applied for refugee protection approximately one month later, on the basis that he had a well-founded fear of persecution in the United States because of his political opinion.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-7", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 22–24", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In his testimony, Mr. Hughey stated his belief that if returned to the United States he would face one to five years in prison and that he might face a more severe sentence because the Army knew through interviews in Canada that he had sought asylum in another country. He also testified that in basic training his drill sergeants told the soldiers that they could be put to death for desertion. DECISIONS OF THE BOARD 1) Interlocutory Decision as to Admissibility of Evidence\n\nMr. Hinzman brought a preliminary motion before the Board to adduce evidence to establish that the war in Iraq is illegal under international law. He maintained that this evidence of illegality was relevant to his claim because it would bring him within paragraph 171 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (the “Handbook”), a document treated as a “highly persuasive authority” in an assessment of whether an individual qualifies for refugee status: Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at page 659.\n\nParagraph 171 of the Handbook provides as follows: 171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-8", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 25–28", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hinzman argued before the Board that an illegal war constitutes a military action “condemned by the international community as contrary to basic rules of human conduct,” within the meaning of paragraph 171 of the Handbook, such that any punishment for deserting an illegal war would constitute persecution.\n\nThe Board disagreed. In its view, when paragraph 171 of the Handbook speaks of a military action contrary to basic rules of human conduct, it refers to specific acts the soldier would be expected to perform “on the ground,” not to the legality of the conflict as a whole. Accordingly, the Board concluded the illegality of the war in Iraq was not relevant to Mr. Hinzman’s claims and therefore refused to admit evidence directed to the issue.\n\nThe appellants are represented by the same counsel. Moreover, Mr. Hughey’s case was heard by the same Board member who had previously adjudicated the Hinzman case. In light of the Board’s preliminary evidentiary ruling in the Hinzman case, counsel for the appellants did not adduce evidence as to the illegality of the war in Iraq in the Hughey case. 2) Decisions as to the Merits of the Refugee Claims\n\nAlthough the Board issued separate Reasons in the Hinzman and Hughey cases, the claims in each case were dismissed on substantially the same basis. Therefore, I summarize the key holdings of the Board collectively.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-9", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 29–30", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Board first identified that there is a presumption in refugee law that states are capable of protecting their citizens. Likewise, the Board noted that there is a presumption that ordinary laws of general application, such as the U.S. laws relating to desertion, are not persecutory. After a detailed analysis, the Board concluded that the appellants had failed to rebut these presumptions of state protection and neutrality of laws and as such, their refugee claims could not succeed.\n\nThe Board also considered the appellants’ contention that the U.S. military action in Iraq involves serious violations of international humanitarian law which are condemned by the international community as contrary to basic rules of human conduct. The appellants argued that, because of these violations of international humanitarian law, paragraph 171 of the Handbook directs that any punishment for their refusal to participate in such conduct would amount to persecution. The Board rejected this argument after an extensive review of the evidence adduced to establish the “on the ground” conduct of the United States military in Iraq. According to the Board, the appellants failed to adduce sufficient evidence to show that if deployed to Iraq they would personally have been required to engage in conduct condemned by the international community as contrary to basic rules of human conduct.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-10", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 31–32", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, the Board considered whether the punishment the appellants would face upon return to the United States would amount to persecution. To establish this claim, the Board indicated that the appellants would have to show that the relevant provisions of the U.S. Uniform Code of Military Justice (“UCMJ”) would be applied to them in a discriminatory fashion or would amount to cruel or unusual treatment or punishment. Neither of these grounds, in the Board’s view, was made out by the appellants. Accordingly, the appellants’ applications for refugee status were rejected. DECISIONS OF THE FEDERAL COURT\n\nThe appellants sought judicial review of the Board’s decisions in the Federal Court. A central issue before Mactavish J. was the interpretation and application of paragraph 171 of the Handbook. The appellants argued that the Board had been wrong to exclude evidence of the Iraq war’s illegality as irrelevant to the appellants’ refugee claims, that the Board erred in finding that the appellants had not established that the violations of international humanitarian law committed by the American military in Iraq are systemic, and that the Board had applied too heavy a burden on the appellants to demonstrate that they would have been involved in unlawful acts had they gone to Iraq.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-11", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 33–34", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "After extensive reasons, Mactavish J. rejected all of the appellants’ claims regarding paragraph 171. She held that in the case of a mere foot soldier, paragraph 171 refers only to “on the ground” conduct of the soldier in question, not to the legality of the war itself. Moreover, she concluded that the Board’s holding that violations of international humanitarian law by the American military in Iraq were not systemic or condoned by the state was a finding of fact reviewable on a standard of patent unreasonableness. In her view, the appellants were unsuccessful in impeaching the Board’s finding against this standard. Likewise, Mactavish J. was satisfied that the Board had applied the appropriate standard of proof in determining whether the appellants had demonstrated that they would have been involved in unlawful acts had they gone to Iraq.\n\nFinally, Justice Mactavish considered whether it was reasonable for the Board to find that the appellants had failed to rebut the presumption of state protection. She concluded that the Board’s decision was appropriate. In her view, because there is no internationally recognized right to conscientiously object to a particular war, other than in the circumstances specifically identified in paragraph 171 of the Handbook, which in her view were not made out in either of the present cases, the fact that the appellants may face prosecution upon return to the United States did not amount to a failure of state protection or to persecution on the basis of political opinion.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-12", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 35", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accordingly, Mactavish J. concluded that there was no basis for interfering with the decisions of the Board. She also certified the following question: When dealing with a refugee claim advanced by a mere foot soldier, is the question whether a given conflict may be unlawful in international law relevant to the determination which must be made by the Refugee Division under paragraph 171 of the UNHCR Handbook? RELEVANT STATUTORY PROVISIONS", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-13", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 36", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 95 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) confers refugee status on individuals who are Convention refugees, while section 96 of IRPA defines what constitutes a Convention refugee. The text of these sections is as follows: 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4). 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 95.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-14", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 36", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). (2) Est appelée personne protégée la personne à qui l’asile est conféré et dont la demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4). 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. ANALYSIS 1) Introduction", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-15", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 37–38", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The certified question asks this Court to rule on whether evidence of the illegality of a military action is relevant to an analysis governed by paragraph 171 of the Handbook. However, to qualify for refugee status, the appellants would have to first satisfy the court that they sought, but were unable to obtain, protection from their home state, or alternatively, that their home state, on an objective basis, could not be expected to provide protection. In my view, for the reasons that follow, the appellants are unable to satisfy this first criterion and therefore it is unnecessary to proceed to the second stage of the analysis where the certified question might become relevant. I would therefore decline to answer the certified question and would dismiss the appeals. 2) Standard of Review\n\nMactavish J. correctly identified that questions as to the adequacy of state protection are questions of mixed fact and law ordinarily reviewable against a standard of reasonableness (Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420 at paragraph 199, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421 at paragraph 186). As the discussion that follows will illustrate, I am of the view that the Board’s holding that the appellants failed to rebut the presumption of state protection was reasonable. 3) State Protection and Persecution", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-16", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 39", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In their Memoranda of Fact and Law, the appellants accept that to succeed in their claims for refugee status, they must come within the definition of “Convention refugee,” which is set out in section 96 of IRPA: 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-17", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 40–41", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants argue that if they are returned to the United States, they will face one to five years in prison for deserting the military. This punishment, they say, amounts to persecution on the basis of their political opinion that the war in Iraq is illegal and immoral. Moreover, they maintain that because the alleged persecutor is the state itself, state protection from persecution is necessarily absent. Therefore, the appellants assert that they are Convention refugees.\n\nIn evaluating the appellants’ claims, the starting point must be the direction from the Supreme Court of Canada that refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protections of his home state. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 709 (“Ward”), La Forest J., speaking for the Court, explained this concept as follows: At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. [Emphasis added.]", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-18", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 42", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants say they fear persecution if returned to the United States. However, to successfully claim refugee status, they must also establish that they have an objective basis for that fear: Ward at page 723. In determining whether refugee claimants have an objective basis for their fear of persecution, the first step in the analysis is to assess whether they can be protected from the alleged persecution by their home state. As the Supreme Court of Canada explained in Ward at page 722, “[i]t is clear that the lynch-pin of the analysis is the state’s inability to protect: it is a crucial element in determining whether the claimant’s fear is well-founded.” [Emphasis in original.] Where sufficient state protection is available, claimants will be unable to establish that their fear of persecution is objectively well-founded and therefore will not be entitled to refugee status. It is only where state protection is not available that the court moves to the second stage, wherein it considers whether the conduct alleged to be persecutory can provide an objective basis for the fear of persecution. If indeed the illegality of the war is relevant, it is at this second stage that the court would consider it. However, because I have determined that the appellants are unable to satisfy the first stage of the analysis, that is, that the United States is incapable of protecting them, it is unnecessary to consider the issues arising in the second stage, including the relevance of the legality of the Iraq war.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-19", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 43–45", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Ward, the Supreme Court explained at page 725 that in refugee law, there is a presumption of state protection: …nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.\n\nTo rebut the presumption, the Court stated that “clear and convincing confirmation of a state’s inability to protect must be provided”: Ward at page 724.\n\nIn Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 at page 534 (F.C.A.), Décary J.A. elaborated on these principles and highlighted that the more democratic a country, the more the claimant must have done to seek out the protection of his or her home state: When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. [Emphasis added.]", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-20", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 46", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The United States is a democratic country with a system of checks and balances among its three branches of government, including an independent judiciary and constitutional guarantees of due process. The appellants therefore bear a heavy burden in attempting to rebut the presumption that the United States is capable of protecting them and would be required to prove that they exhausted all the domestic avenues available to them without success before claiming refugee status in Canada. In Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 at page 176 (F.C.A.) (“Satiacum”) this Court was called upon to consider a claim of insufficient state protection in the United States and commented on the difficult task facing a claimant attempting to establish a failure of state protection in the United States: In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-21", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 47–48", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although the United States, like other countries, has enacted provisions to punish deserters, it has also established a comprehensive scheme complete with abundant procedural safeguards for administering these provisions justly. In particular, Army Regulation 600-43 formally recognizes the validity of conscientious objection to military service by providing conscientious objectors with exemptions from military service or alternatives to combat. Soldiers attempting to avail themselves of these exemptions from combat service are provided with numerous procedural protections, including the right to a hearing and a right of appeal. They are also transferred to non-combat positions upon the making of an application, a provision from which Mr. Hinzman benefited when he was assigned to act as a guard at the entrance of the Fort Bragg base and to kitchen duties for the duration of his deployment in Afghanistan.\n\nFurthermore, while punishment for desertion can include imprisonment, the evidence indicates that the vast majority of Army deserters in the United States have not been prosecuted or court-martialled. Rather, approximately 94% of deserters have been dealt with administratively and merely receive a less-than-honourable discharge from the military (Exhibit M-5, Appeal Book at page 2420).", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-22", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 49–50", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Board found that no evidence had been brought forward to establish that the appellants would not be afforded the full protection of the law if they were court-martialled in the United States. It concluded that if the appellants were court-martialled, they would be subjected to a sophisticated military justice system that respects the rights of the service person, guarantees appellate review and provides a limited access to the U.S. Supreme Court, as outlined in the UCMJ and the Manual for Courts-Martial of the United States.\n\nNeither Mr. Hinzman nor Mr. Hughey made an adequate attempt to avail himself of the protections afforded by the United States. Although Mr. Hinzman applied for conscientious objector status, he did not avail himself of all the recourses available to him. In particular, he failed to take advantage of his right to request an adjournment of the hearing respecting his conscientious objector application until his return to the United States, where he would be able to call appropriate witnesses, and to avail himself of his right of appeal from a negative decision at first instance. Like the Board, I find that it was not unreasonable to expect that Mr. Hinzman would have pursued further his request for conscientious objector status after learning that First Lieutenant Fitzgerald had found against him.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-23", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 51–53", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Unlike Mr. Hinzman, Mr. Hughey did not apply for conscientious objector status, nor did he take any other formal steps to avoid combat service contrary to his political views. Mr. Hughey’s attempts to avail himself of protections available in the United States appear to be limited to the discussions he had with his superior officers about the possibility of obtaining a discharge from the military, in which he was told that such a discharge was not available. He apparently did not seek any other advice, for example from a chaplain or a lawyer, about the options available to him.\n\nRather than attempt to take advantage of the protections potentially available to them in the United States, the appellants came to Canada and claimed refugee status. As the Supreme Court of Canada directed in Ward, however, refugee protection is not available where there has been an inadequate attempt to seek out the protections available in one’s home country.\n\nThe appellants challenge this reasoning, arguing that evidence of the state’s failure to protect is unnecessary where the state is the agent of persecution. They cite Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 at paragraph 19 (F.C.T.D.), for the proposition that when the state is persecuting the claimants, state protection is, by definition, absent. They note that in Ward, at issue were the actions of a non-state entity that was allegedly persecuting the claimant. According to the appellants, only in that situation is it appropriate for the Court to inquire into whether the state was able to protect the refugee claimant from his persecutor.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-24", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 54", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the concepts of persecution and state protection are interconnected such that the question of whether the refugee claimant has attempted to avail himself of the protective mechanisms provided by the state is relevant both where the alleged persecutor is an organ of the state and where the alleged persecutor is a non-state entity. The central feature of the refugee protection scheme is that the refugee claimant has a fear of persecution that is objectively well-founded (Ward at page 723). Where the claimant alleges that he is being persecuted by the state itself, the inquiry into the availability of state protection goes to the question of whether the claimant has an objective basis for his fear of persecution. If effective state protection for religious or political beliefs is available to the claimant, it can hardly be said that there is a serious possibility of persecution by the state sufficient to make his fear of persecution objectively well-founded. The presumption of state protection described in Ward, therefore, applies equally to cases where an individual claims to fear persecution by non-state entities and to cases where the state is alleged to be a persecutor. This is particularly so where the home state is a democratic country like the United States. We must respect the ability of the United States to protect the sincerely held beliefs of its citizens. Only where there is clear and convincing evidence that such protections are unavailable or ineffective such that state conduct amounts to persecution will this country be able to extend its refugee protections to the claimants.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-25", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 55", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "A second contention made by the appellants is that Ward requires refugee claimants to seek out protections provided by their home countries only if that protection can be said to “reasonably have been forthcoming.” In their assessment, the protections provided to the appellants by the United States would not meet this threshold. They say that the American approach to conscientious objection does not protect those who only object to specific wars, rather than to all wars. The appellants argue that because they fall into the former category, it cannot be said that protection from the United States “might reasonably have been forthcoming” to them such that they should have attempted to avail themselves of such procedures. Moreover, the appellants submit that they would be unable to challenge the legality of the Iraq war in a U.S. court because of the U.S. political questions doctrine which, they claim, renders such issues non-justiciable. In light of this doctrine the appellants say that their only option would be to appeal to the Executive, an illusory recourse, in their view, because it was the Executive that chose to go to war in Iraq.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-26", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 56", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "I cannot agree. A careful reading of Ward illustrates that when the Supreme Court of Canada adopted the test formulated by Professor Hathaway (that only in situations in which state protection “might reasonably have been forthcoming” will the claimant’s failure to approach the state for protection defeat his claim), the Court did not intend that refugee claimants would easily be able to avoid the requirement that they approach their home countries for protection before seeking international refugee protection. La Forest J. clarifies in the next sentence of his Reasons, at page 724, that the test is meant to be an objective one: …the claimant will not meet the definition of \"Convention refugee\" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities...", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-27", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 57", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Kadenko and Satiacum together teach that in the case of a developed democracy, the claimant is faced with the burden of proving that he exhausted all the possible protections available to him and will be exempted from his obligation to seek state protection only in the event of exceptional circumstances: Kadenko at page 534, Satiacum at page 176. Reading all these authorities together, a claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status. In view of the fact that the United States is a democracy that has adopted a comprehensive scheme to ensure those who object to military service are dealt with fairly, I conclude that the appellants have adduced insufficient support to satisfy this high threshold. Therefore, I find that it was objectively unreasonable for the appellants to have failed to take significant steps to attempt to obtain protection in the United States before claiming refugee status in Canada.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-28", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 58", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the circumstances, it is difficult to conclude, without clear evidence of the appellants’ experiences to the contrary, that the appellants would have inadequate protection for their beliefs in the United States. Mr. Hinzman’s objections to combat transcend the war in Iraq and are grounded at least in part in his religious and spiritual beliefs. He may therefore very well have qualified as a conscientious objector had he pursued his application fully. Mr. Hughey may have more difficulty in seeking conscientious objector status because he objects only to the specific military action in Iraq on political grounds. Without evidence of his attempts to obtain such protection, however, it is impossible to know how he would have fared. In any event, conscientious objector discharges are not the only means by which soldiers can obtain early release from the military. Statistics adduced by the Crown indicate that approximately 94% of deserters from the U.S. Army have not faced prosecution and imprisonment, but have merely been dealt with administratively by being released from the military with a less-than-honourable discharge. Arguably, the chance of receiving an administrative discharge will be even higher for those who attempt to negotiate a discharge before deserting their units. Contrary to the appellants’ assertions, therefore, these statistics suggest that appeal to the Executive is not an illusory recourse.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-29", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 59", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In oral argument, counsel for the appellants disputed the statistics relating to punishment for deserters on the basis that they were computed prior to the commencement of the most recent U.S. military action in Iraq. However, he could not point us to any contrary evidence. Moreover, there is reason to believe the statistics would not have changed materially. As Lord Hoffman noted in Sepet v. Secretary of State for the Home Department, [2003] UKHL 15 at paragraph 44 (H.L.), soldiers who conscientiously object to combat may do more harm than good because their unwillingness to participate voluntarily may make them ineffective in combat and because they are likely to be articulate individuals who will attempt to spread their beliefs among their colleagues. It therefore may be in the best interests of the military to accommodate those who object to combat by merely discharging them from service.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-30", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 60", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, while the Board said that the appellants would likely face one to five years imprisonment if returned to the United States, this can only be an opinion as to what U.S. courts would do. It is important to note that the Board’s Reasons did not consider all of the important evidence. In particular, the Reasons make no reference to the statistic that the vast majority of deserters are not prosecuted, let alone jailed for their conduct. As Justice Evans identified in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at paragraph 17 (F.C.T.D.), a court will be reluctant to defer to a tribunal’s decision where the tribunal’s reasons consider in detail the evidence supporting its conclusions, but do not refer to important evidence pointing to a different conclusion: [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-31", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 61–62", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although the Board considered evidence suggesting that the appellants would be imprisoned for desertion if returned to the United States, it failed to make reference to the critical statistic that most deserters have not been imprisoned. This failure on the part of the Board suggests that its opinion regarding the punishment the appellants will potentially face upon return to the United States was made without regard to the material before it and therefore the Board’s opinion cannot be relied upon. 4) Conclusion\n\nIn conclusion, the appellants have failed to satisfy the fundamental requirement in refugee law that claimants seek protection from their home state before going abroad to obtain protection through the refugee system. Several protective mechanisms are potentially available to the appellants in the United States. Because the appellants have not adequately attempted to access these protections, however, it is impossible for a Canadian court or tribunal to assess the availability of protections in the United States. Accordingly, the appellants’ claims for refugee protection in Canada must fail. CLAIMS OF MR. HINZMAN’S WIFE AND SON", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-32", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 63–64", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hinzman’s wife, Nga Thi Nguyen, and son, Liam Liem Nguyen Hinzman, also claimed refugee status on the basis of membership in a particular social group, namely, Mr. Hinzman’s immediate family. Although they are named as appellants in the Hinzman appeal, no arguments were addressed to them in the Memorandum of Fact and Law filed in respect of that appeal or in oral argument. Moreover, the Order sought in the Hinzman appeal refers to the “Appellant,” in the singular, thereby apparently referring only to Mr. Hinzman. In these circumstances, I adopt the conclusions of the Board: The adult claimants adduced no evidence that Nga Thi Nguyen or Liam Liem Nguyen Hinzman would face a serious possibility of persecution or other serious harm as a result of being part of Mr. Hinzman’s family, even were he to receive a term of imprisonment for his desertion. They relied on the evidence of Mr. Hinzman, with whose claim theirs were joined. Since Mr. Hinzman has failed to establish his claim, their claims must also fail. DISPOSITION\n\nFor the foregoing reasons, I would refrain from answering the certified question and I would dismiss the appeals. \"J. Edgar Sexton\" J.A. \"I agree Robert Décary J.A.\" \"I agree John M. Evans J.A.\" FEDERAL COURT OF APPEAL", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35611-1", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 1–3", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Chairperson of the Immigration and Refugee Board (“the Board”) has broad statutory powers to issue both guidelines and rules. Rules have to be approved by the Governor in Council and laid before Parliament, but guidelines do not.\n\nThis appeal concerns the validity of Guideline 7 (Preparation and Conduct of a Hearing in the Refugee Protection Division), issued in 2003 by the Chairperson of the Board pursuant to the statutory power to “issue guidelines … to assist members in carrying out their duties”: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), paragraph 159(1)(h). The key paragraphs of Guideline 7 provide as follows: “In a claim for refugee protection, the standard practice will be for the R[efugee] P[rotection] O[fficer] to start questioning the claimant” (para. 19), although the member of the Refugee Protection Division (“RPD”) hearing the claim “may vary the order of questioning in exceptional circumstances” (para. 23).\n\nThe validity of Guideline 7 is challenged on two principal grounds. First, it deprives refugee claimants of the right to a fair hearing by denying them the opportunity to be questioned first by their own counsel. Second, even if Guideline 7 does not prescribe a hearing that is in breach of the duty of fairness, the Chairperson should have introduced the new standard order of questioning as a rule of procedure under IRPA, paragraph 161(1)(a), not as a guideline under IRPA, paragraph 159(1)(h). Guideline 7 is not valid as a guideline because paragraphs 19 and 23 unlawfully fetter the discretion of members of the RPD to determine the appropriate order of questioning when hearing refugee protection claims.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-2", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 4–6", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal by the Minister of Citizenship and Immigration from a decision by Justice Blanchard of the Federal Court granting an application for judicial review by Daniel Thamotharem to set aside a decision by the RPD dismissing his claim for refugee protection: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168.\n\nJustice Blanchard held that Guideline 7 is an unlawful fetter on the exercise of discretion by individual RPD members to determine the order of questioning at a hearing, in the absence of a provision in either IRPA or the Refugee Protection Division Rules, SOR/2002-228, dealing with this aspect of refugee protection hearings. He remitted Mr Thamotharem’s refugee claim to be determined by a different member of the RPD on the basis that Guideline 7 is an invalid fetter on the exercise of decision-makers’ discretion.\n\nHowever, Justice Blanchard rejected Mr Thamotharem’s argument that Guideline 7 is invalid because it deprives refugee claimants of the right to a fair hearing, and distorts the “judicial” role of the member hearing the claim. Mr Thamotharem has cross-appealed this finding.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-3", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 7–9", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Judge certified the following questions for appeal pursuant to paragraph 74(d) of IRPA. 1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard? 2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion? 3. Does a finding that Guideline 7 fetters a Refugee Protection Division Member’s discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?\n\nImmediately after hearing the Minister’s appeal in Thamotharem, we heard appeals by unsuccessful refugee claimants challenging the validity of Guideline 7 and, in some of the cases, impugning on other grounds the dismissal of their claim. In the Federal Court, 19 applications for judicial review concerning Guideline 7 were consolidated. Justice Mosley’s decision on the Guideline 7 issue is reported as Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2007] 1 F.C.R. 107. The appeals from these decisions were also consolidated, Benitez being designated the lead case.\n\nIn Benitez, Justice Mosley agreed with the conclusions of Justice Blanchard on all issues, except one: he held that Guideline 7 was not an unlawful fetter on the discretion of Board members because its text permitted them to allow the claimant’s counsel to question first, as, in fact, some had.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-4", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 10–12", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "For substantially the reasons that they gave, I agree with both Justices that Guideline 7 is not, on its face, invalid on the ground of procedural unfairness, although, as the Minister and the Board conceded, fairness may require that, in certain circumstances, particular claimants should be questioned first by their own counsel. I also agree that Guideline 7 is not incompatible with the impartiality required of a member when conducting a hearing which is inquisitorial in form.\n\nHowever, in my opinion, Guideline 7 is not an unlawful fetter on the exercise of members’ discretion on the conduct of refugee protection hearings. The Guideline expressly directs members to consider the facts of the particular case before them to determine whether there are exceptional circumstances warranting a deviation from the standard order of questioning. The evidence does not establish that members disregard this aspect of Guideline 7 and slavishly adhere to the standard order of questioning, regardless of the facts of the case before them. Accordingly, I agree with Justice Mosley on this issue, and must respectfully disagree with Justice Blanchard.\n\nNor does it follow from the fact that Guideline 7 could have been issued as a statutory rule of procedure that it is invalid because it was not approved by the Governor in Council. In my opinion, the Chairperson’s rule-making power does not invalidate Guideline 7 by impliedly excluding from the broad statutory power to issue guidelines “to assist members in carrying out their duties” changes to the procedure of any of the Board’s Divisions.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-5", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 13–16", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accordingly, I would allow the Minister’s appeal, and dismiss Mr Thamotharem’s cross- appeal and his application for judicial review. Although separate reasons are given in Benitez (2007 FCA 199) dealing with issues not raised in Mr Thamotharem’s appeal, a copy of the reasons in the present appeal will also be inserted in Court File No. A-164-06 (Benitez) and the files of the appeals consolidated with it. B. FACTUAL BACKGROUND (i) Mr Thamotharem’s refugee claim\n\nMr Thamotharem is Tamil and a citizen of Sri Lanka. He entered Canada in September 2002 on a student visa. In January 2004, he made a claim for refugee protection in Canada, since he feared that, if forced to return to Sri Lanka, he would be persecuted by the Liberation Tigers of Tamil Eelam.\n\nIn written submissions to the RPD before his hearing, Mr Thamotharem objected to the application of Guideline 7, on the ground that it deprives refugee claimants of their right to a fair hearing. He did not argue that, on the facts of his case, he would be denied a fair hearing if he were questioned first by the Refugee Protection Officer (“RPO”) and/or the member conducting the hearing. There was no evidence that Mr Thamotharem suffered from post-trauma stress disorder, or was otherwise particularly vulnerable.\n\nAt the hearing of the claim before the RPD, the RPO questioned Mr Thamotharem first. The RPD held that the duty of fairness does not require that refugee claimants always have the right to be questioned first by their counsel and that the application of Guideline 7 does not breach Mr Thamotharem’s right to procedural fairness.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-6", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 17–18", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In a decision dated August 20, 2004, the RPD dismissed Mr Thamotharem’s refugee claim and found him not to be a person in need of protection. It based its decision on documentary evidence of improved country conditions for Tamils in Sri Lanka, and on the absence of reliable evidence that Mr Thamotharem would be persecuted as a perceived member of a political group or would, for the first time, become the target of extortion.\n\nIn his application for judicial review, Mr Thamotharem challenged this decision on the ground that Guideline 7 was invalid, and that the RPD had made a reviewable error in its determination of the merits of his claim. As already noted, Mr Thamotharem’s application for judicial review was granted, the RPD’s decision set aside and the matter remitted to another member for re-determination on the basis that Guideline 7 is an invalid fetter on the RPD’s discretion in the conduct of the hearing. In responding in this Court to the Minister’s appeal, Mr. Thamotharem did not argue that, even if Guideline 7 is valid, Justice Blanchard was correct to remit the matter to the RPD because it committed a reviewable error in determining the merits of the claim. (ii) Guideline 7", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-7", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 19–20", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before the Chairperson issued Guideline 7, the order of questioning was within the discretion of individual members; neither IRPA, nor the Refugee Protection Division Rules, addressed it. Refugee protection claims are normally determined by a single member of the RPD. The evidence indicated that, before the issue of Guideline 7, practice on the order of questioning was not uniform across Canada. Members sitting in Toronto and, possibly, in Vancouver and Calgary, permitted claimants to be “examined in chief” by their counsel before being questioned by the RPO and/or the member. In Montreal and Ottawa, on the other hand, the practice seems to have been that the member or the RPO questioned the claimant first, although a request by counsel for a claimant to question first seems generally to have been granted.\n\nIt is not surprising that the Board did not regard it as satisfactory that the order of questioning was left to be decided by individual members on an ad hoc basis, with variations among regions, and among members within a region. Claimants are entitled to expect essentially the same procedure to be followed at an RPD hearing, regardless of where or by whom the hearing is conducted.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-8", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 21", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "There was also a view that refugee protection hearings would be more expeditious if claimants were generally questioned first by the RPO or the member, thus dispensing with the often lengthy and unfocussed examination-in-chief of claimants by their counsel. The backlog of refugee determinations has been a major problem for the Board. For example, from 1997-98 to 2001-02 the number of claims referred for determination each year increased steadily from more than 23,000 to over 45,000, while, in the same period, the backlog of claims referred but not decided grew from more than 27,000 to nearly 49,000: Canada, Immigration and Refugee Board, Performance Report, for the period ending March 31, 2004.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-9", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 22", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Studies were undertaken to find ways of tackling this problem. For example, in a relatively early report, Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (Ottawa: Immigration and Refugee Board, 1993), refugee law scholar, Professor James C. Hathaway, made many recommendations designed to make the Board’s determination of refugee claims more effective, expeditious, and efficient. The following passage from the Report (at 74) is particularly relevant to the present appeal. The present practice of an introductory “examination in chief” by counsel should be dispensed with, the sworn testimony in the Application for Refugee Status being presumed to be true unless explicitly put in issue. Panel members should initially set out clearly the substantive matters into which they wish to inquire, and explain any concerns they may have about the sufficiency of documentary evidence presented. Members should assume primary responsibility to formulate the necessary questions, although they should feel free to invite counsel to adduce testimony in regard to matters of concern to them. Once the panel has concluded its questioning, it should allow the Minister’s representative, if present, an opportunity to question or call evidence, ensuring that the tenor of the Ministerial intervention is not allowed to detract from the non-adversarial nature of the hearing. Following a brief recess, the panel should outline clearly on the record which matters it views as still in issue, generally using the Conference Report as its guide. Any matters not stated by the panel to be topics of continuing concern should be deemed to be no longer in issue.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-10", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 22–25", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Counsel would then be invited to elicit testimony, call witnesses, and make submissions as adjudged appropriate, keeping in mind that all additional evidence must be directed to a matter which remains in issue. [footnotes omitted]\n\nStarting in 1999, the Board worked to develop what became Guideline 7, which was finally issued in October 31, 2003, as part of an action plan to reduce the backlog on the refugee side by increasing the efficiency of its decision-making process. In addition to the order of questioning provisions in dispute in this case, Guideline 7 also deals with the early identification of issues and disclosure of documents, procedures when a claimant is late or fails to appear, informal pre-hearing conferences, and the administration of oaths and affirmations.\n\nIn addition to the consultations with the Deputy Chairperson and the Director General of the Immigration Division mandated by paragraph 159(1)(h) before the Chairperson issues a guideline, the Board held consultations on the proposed Guideline with members of the Bar and other “stakeholders”. Some, however, including the Canadian Council for Refugees, an intervener in this appeal, regarded the consultations as less than meaningful, while others characterized Guideline 7 as an overly “top-down” initiative by senior management of the Board. On the basis of the material before us, I am unable to comment on either of these observations.\n\nFrom December 1, 2003, the implementation of Guideline 7 was gradually phased in, becoming fully operational across the country by June 1, 2004. Like other guidelines issued by the Chairperson, Guideline 7 was published. C. LEGISLATIVE FRAMEWORK (i) IRPA", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-11", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 26", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "IRPA confers on the Chairperson of the Board broad powers over the management of each Division of the Board, including a power to issue guidelines. 159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson (a) has supervision over and direction of the work and staff of the Board; … (g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay; (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties; … 159. (1) Le président est le premier dirigeant de la Commission ainsi que membre d’office des quatre sections; à ce titre : a) il assure la direction et contrôle la gestion des activités et du personnel de la Commission; […] g) il prend les mesures nécessaires pour que les commissaires remplissent leurs fonctions avec diligence et efficacité; h) après consultation des vice-présidents et du directeur général de la Section de l’immigration et en vue d’aider les commissaires dans l’exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel; […]", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-12", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 27", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "IRPA also empowers the Chairperson of the Board to make rules for each of the three Divisions of Board. The rules, however, must be approved by the Governor in Council, and laid before Parliament. 161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting (a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given; (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules; (c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and (d) any other matter considered by the Chairperson to require rules. (2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council. 161.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-13", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 27–28", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Sous réserve de l’agrément du gouverneur en conseil et en consultation avec les vice-présidents et le directeur général de la Section de l’immigration, le président peut prendre des règles visant : a) les travaux, la procédure et la pratique des sections, et notamment les délais pour interjeter appel de leurs décisions, l’ordre de priorité pour l’étude des affaires et les préavis à donner, ainsi que les délais afférents; b) la conduite des personnes dans les affaires devant la Commission, ainsi que les conséquences et sanctions applicables aux manquements aux règles de conduite; c) la teneur, la forme, le délai de présentation et les modalités d’examen des renseignements à fournir dans le cadre d’une affaire dont la Commission est saisie; d) toute autre mesure nécessitant, selon lui, la prise de règles. (2) Le ministre fait déposer le texte des règles devant chacune des chambres du Parlement dans les quinze premiers jours de séance de celle-ci suivant leur agrément par le gouverneur en conseil.\n\nIRPA emphasises the importance of informality, promptness and fairness in the Board’s proceedings. 162. (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. 162. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-14", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 29", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In keeping with the inquisitorial nature of the RPD’s process, IRPA confers broad discretion on members in their conduct of a hearing. 165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing. 165. La Section de la protection des réfugiés et la Section de l’immigration et chacun de ses commissaires sont investis des pouvoirs d’un commissaire nommé aux termes de la partie I de la Loi sur les enquêtes et peuvent prendre les mesures que ceux-ci jugent utiles à la procédure.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-15", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 30", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Part I of the Inquiries Act, R.S.C. 1985, c. I-11, empowers commissioners of inquiry as follows: 4. The commissioners have the power of summoning before them any witnesses, and of requiring them to (a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and (b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine. 5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases. 4. Les commissaires ont le pouvoir d’assigner devant eux des témoins et de leur enjoindre de : a) déposer oralement ou par écrit sous la foi du serment, ou d’une affirmation solennelle si ceux-ci en ont le droit en matière civile; b) produire les documents et autres pièces qu’ils jugent nécessaires en vue de procéder d’une manière approfondie à l’enquête dont ils sont chargés. 5. Les commissaires ont, pour contraindre les témoins à comparaître et à déposer, les pouvoirs d’une cour d’archives en matière civile.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-16", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 31", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The following provisions of IRPA respecting the decision-making process of the RPD are also relevant. 170. The Refugee Protection Division, in any proceeding before it, (a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded; … (g) is not bound by any legal or technical rules of evidence; (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; … 170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés : a) procède à tous les actes qu’elle juge utiles à la manifestation du bien-fondé de la demande; […] g) n’est pas liée par les règles légales ou techniques de présentation de la preuve; h) peut recevoir les éléments qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; […] (ii) Guideline 7", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-17", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 32", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Paragraphs 19 and 23 of Guideline 7, issued by the Chairperson under IRPA, paragraph 159(1)(h), are of immediate relevance in this appeal, while paragraphs 20-22 provide context. 19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case. 20. In a claim for refugee protection where the Minister intervenes on an issue other than exclusion, for example, on a credibility issue, the RPO starts the questioning. If there is no RPO at the hearing, the member will start the questioning, followed by the Minister's counsel and then counsel for the claimant. 21. In proceedings where the Minister intervenes on the issue of exclusion, Minister's counsel will start the questioning, followed by the RPO, the member, and counsel for the claimant. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants. 22. In proceedings where the Minister is making an application to vacate or to cease refugee protection, Minister's counsel will start the questioning, followed by the member, and counsel for the protected person. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants. 23. The member may vary the order of questioning in exceptional circumstances.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-18", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 32", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules. 19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas. 20. Dans les demandes d'asile où l'intervention du ministre porte sur une question autre que l'exclusion, la crédibilité par exemple, l'APR commence l'interrogatoire. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire; viennent ensuite le conseil du ministre puis le conseil du demandeur d'asile. 21. Dans les demandes où l'intervention du ministre porte sur la question de l'exclusion, le conseil du ministre interroge d'abord le demandeur d'asile; il est suivi de l'APR, du commissaire, puis du conseil du demandeur d'asile. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l'audience s'il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions. 22.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-19", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 32–33", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Dans les demandes d’annulation ou de constat de perte d’asile présentées par le ministre, le conseil du ministre commence l’interrogatoire; il est suivi du commissaire, puis du conseil de la personne protégée. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l’audience s’il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions. 23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR. D. ISSUES AND ANALYSIS Issue 1: Standard of review\n\nThe questions of law raised in this appeal about the validity of Guideline 7 are reviewable on a standard of correctness: they concern procedural fairness, statutory interpretation, and the unlawful fettering of discretion. The exercise of discretion by the Chairperson to choose a guideline rather than a formal rule as the legal instrument for amending the procedure of any of the Board’s Divisions by is reviewable for patent unreasonableness. Issue 2: Does Guideline 7 prescribe a hearing procedure that is in breach of claimants’ right to procedural fairness?", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-20", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 34–35", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Blanchard dealt thoroughly with this issue at paras. 36-92 of his reasons. He concluded that the jurisprudence did not require that, as a matter of fairness, claimants always be given the opportunity to be questioned first by their counsel (at paras. 38-53). He then considered (at paras. 68-90) the criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28 (“Baker”), for determining where to locate refugee protection hearings on the procedural spectrum from the informal to the judicial. Largely on the basis of the adjudicative nature of the RPD’s functions, the finality of its decision, and the importance of the individual rights at stake, he concluded (at para. 75) that “a higher level of procedural protection is warranted”.\n\nHowever, recognizing also that the content of the duty of fairness varies with context, Justice Blanchard noted that Parliament had chosen an inquisitorial procedural model for the determination of refugee claims by the RPD, in the sense that there is no party opposing the claim, except in the rare cases when the Minister intervenes to oppose a claim on exclusion grounds. Consequently, in the overwhelming majority of cases, the task of probing the legitimacy of claims inevitably falls to the RPO, who questions the claimant on behalf of the member, and/or to the member of the RPD conducting the hearing, especially when no RPO is present. This is an important reason for concluding that not all the elements of the adversarial procedural model followed in the courts are necessarily required for a fair hearing of a refugee claim: see paras. 72-75.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-21", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 36–37", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Blanchard also acknowledged that claimants may derive tactical advantages from being taken through their story by their own lawyer before being subjected to questioning by the RPO, who will typically focus on inconsistencies, gaps, and improbabilities in the narrative found in the claimant’s personal information form (“PIF”) and any supporting documentation, as well as any legal weaknesses in the claim. The tactical advantage of questioning first may be particularly significant in refugee hearings because of the vulnerability and anxiety of many claimants, as a result of: their inability to communicate except through an interpreter; their cultural backgrounds; the importance for them of the RPD’s ultimate decision; and the psychological effects of the harrowing events experienced in their country of origin.\n\nNonetheless, Justice Blanchard concluded that these considerations do not necessarily rise to the level of unfairness. Indeed, in addition to shortening the hearing, questioning by the RPO may also serve to improve the quality of the hearing by focusing it and enabling a claimant’s counsel to make sure that aspects of the claim troubling the member are fully dealt with when the claimant comes to tell his or her story. Consequently, in order to be afforded their right to procedural fairness, claimants need not normally be given the opportunity to be questioned by their counsel before being questioned by the RPO and/or RPD member.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-22", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 38–39", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Blanchard noted, for example, that RPD members receive training to sensitize them to the accommodations needed when questioning vulnerable claimants, that claimants may supplement or modify the information in their PIF and adduce evidence before the hearing, and that expert evidence indicated that vulnerable claimants’ ability to answer questions fully, correctly and clearly is likely to depend more on the tone and style of questioning than on the order in which it occurs.\n\nMoreover, the duty of fairness forbids members from questioning in an overly aggressive and badgering manner, or in a way that otherwise gives rise to a reasonable apprehension of bias. Fairness also requires that claimants be given an adequate opportunity to tell their story in full, to adduce evidence in support of their claim, and to make submissions relevant to it. To this end, fairness may also require that, in certain circumstances, a claimant be afforded the right to be questioned first by her or his counsel. In addition, Guideline 7 recognizes that there will be exceptional cases in which, even though not necessarily required by the duty of fairness, it will be appropriate for the RPD to depart from the standard order of questioning.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-23", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 40–42", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "I agree with Justice Blanchard’s conclusion on this issue and have little useful to add to his reasons. Before us, counsel did not identify any error of principle in the Applications Judge’s analysis nor produce any binding judicial authority for the proposition that it is a breach of the duty of fairness to deny claimants the right to be questioned first by their own counsel. Criticisms were directed more to the weight that Justice Blanchard gave to some of the evidence and the factors to be considered. I can summarize as follows the principal points made in this Court by counsel.\n\nFirst, the importance of the individual rights potentially at stake in refugee protection proceedings indicates a court-like hearing, in which the party with the burden of proof goes first: see, for example, Can-Am Realty Ltd. v. Canada (1993), 69 F.T.R. 63 at 63-64. I agree at a general level that the seriousness of the rights involved in the determination of a refugee claim, as well as the generally “judicial” character of the oral hearings held by the RPD, militate in favour of affording claimants a high degree of procedural protection. However, its details must also be tailored to fit the inquisitorial and relatively informal nature of the hearing established by Parliament, as well as the RPD’s high volume case load, considerations which reduce the power of the claim to aspects of the adversarial model used in courts, including the order of questioning.\n\nSecond, the procedure set out in Guideline 7 is derived from the erroneous notion that the RPD is a board of inquiry, not an adjudicator. Unlike those appearing at inquiries, refugee claimants have the burden of proving a claim, which the RPD adjudicates.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-24", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 43–44", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "I do not agree. The Board correctly recognizes that the RPD’s procedural model is more inquisitorial in nature, unlike that of the Immigration Appeal Division (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 82). I cannot conclude on the basis of the evidence as a whole that the Board adopted the standard order of questioning in the mistaken view that the RPD is a board of inquiry, even though it decides claimants’ legal rights in the cases which they bring to it for adjudication and claimants bear the burden of proof. This conclusion is not undermined by a training document (“Questioning 101”), prepared by the Board’s Professional Development Branch in 2004 for members and RPOs, which contains a somewhat misleading reference to the compatibility of the standard order of questioning with “a board of inquiry model”.\n\nA relatively inquisitorial procedural form may reduce the degree of control over the process often exercisable by counsel in adversarial proceedings, especially before inexperienced tribunal members or those who lack the confidence that legal training can give. Nonetheless, the fair adjudication of individual rights is perfectly compatible with an inquisitorial process, where the order of questioning is not as obvious as it generally is in an adversarial hearing.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-25", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 45–47", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Third, placing RPD members in the position of asking the claimant questions first, when no RPD is present, distorts their judicial role by thrusting them into the fray, thereby creating a reasonable apprehension of bias by making them appear to be acting as both judge and prosecutor. Guideline 7 is particularly burdensome for members now that panels normally comprise a single member, and there is often no RPO present to assume the primary responsibility for questioning the claimant on behalf of the Board.\n\nI disagree. Adjudicators can and should normally play a relatively passive role in an adversarial process, because the parties are largely responsible for adducing the evidence and arguments on which the adjudicator must decide the dispute. In contrast, members of the RPD, sometimes assisted by an RPO, do not have this luxury. In the absence in most cases of a party to oppose the claim, members are responsible for making the inquiries necessary, including questioning the claimant, to determine the validity of the claim: see IRPA, paragraph 170(a); Sivisamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.) at 757-78; Shahib v. Canada (Minister of Citizenship and Immigration), 2005 FC 1250 at para. 21. The fact that the member or the RPO may ask probing questions does not make the proceeding adversarial in the procedural sense.\n\nTo the extent that statements in Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.), suggest that a member of the RPD hearing a refugee claim is restricted to asking the kind of questions that a judge in a civil or criminal proceeding may ask, they are, in my respectful opinion, incorrect, especially when no RPO is present.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-26", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 48–50", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The fact that members question the claimant first when there is no RPO present does not distort the inquisitorial process established by IRPA and would not give rise to a reasonable apprehension of bias on the part of a person who was informed of the facts and had thought the matter through in a practical manner. Inquisitorial processes of adjudication are not unfair simply because they are relatively unfamiliar to common lawyers.\n\nFourth, Guideline 7 interferes with claimants’ right to the assistance of counsel because it prevents them from being taken through their story by their counsel before being subject to the typically more sceptical questioning by the RPO. I do not agree. Guideline 7 does not curtail counsel’s participation in the hearing; counsel is present throughout and may conduct an examination of the client to ensure that the claimant’s testimony is before the decision-maker. The right to be represented by counsel does not include the right of counsel to determine the order of questioning or, for that matter, any other aspect of the procedure to be followed at the hearing.\n\nFinally, no statistical evidence was adduced to support the allegation that Guideline 7 jeopardizes the ability of the RPD accurately to determine claims for refugee protection. There is simply no evidence to establish what impact, if any, the introduction of Guideline 7 has had on acceptance rates.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-27", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 51–53", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In summary, the procedure prescribed by Guideline 7 is not, on its face, in breach of the Board’s duty of fairness. However, in some circumstances, fairness may require a departure from the standard order of questioning. In those circumstances, a member’s refusal of a request that the claimant be questioned first by her counsel may render the determination of the claim invalid for breach of the duty of fairness.\n\nConsequently, if the Chairperson had implemented the reform to the standard order of questioning at refugee determination hearings in a formal rule of procedure issued in accordance with paragraph 161(1)(a), it would have been beyond challenge on the grounds advanced in this appeal respecting the duty of fairness, including bias. The somewhat technical question remaining is whether the Chairperson’s choice of legislative instrument (that is, a guideline rather than a formal rule of procedure) to implement the procedural change was in law open to him. Issue 3: Is Guideline 7 unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members’ exercise of discretion in the conduct of hearings?\n\nAs already noted, Justice Blanchard and, in Benitez, Justice Mosley, reached different conclusions on whether Guideline 7 unlawfully fettered the discretion of members of the RPD in deciding the order of questioning at a refugee determination hearing. The records in the two applications were not identical. In particular, there was more evidence before Justice Mosley, comprising some forty decisions and excerpts from transcripts of RPD hearings, that RPD members are willing to recognize exceptional cases in which it is appropriate to depart from the standard order of questioning.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-28", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 54–55", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the circumstances of these appeals, it is appropriate to consider all the evidence before both judges. From a practical point of view, it would be anomalous if this Court were to reach different conclusions about the validity of Guideline 7 in two cases set down to be heard one after the other. However, I do not attach much, if any, significance to the differences in the records. Justice Blanchard properly based his conclusion, for the most part, on what he saw as the mandatory language of Guideline 7. (i) Rules, discretion and fettering\n\nEffective decision-making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact-specific solutions on the other. Legislative instruments (including such non-legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case by case basis.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-29", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 56–57", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Though the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well as to the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day-to-day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation. Indeed, an administrative agency does not require an express grant of statutory authority in order to issue guidelines and policies to structure the exercise of its discretion or the interpretation of its enabling legislation: Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 121 D.L.R. (4th) 79 (Ont. C.A.) at 83 (“Ainsley”).\n\nBoth academic commentators and the courts have emphasized the importance of these tools for good public administration, and have explored their legal significance. See, for example, Hudson N. Janisch, “The Choice of Decision-Making Method: Adjudication, Policies and Rule-Making” in Special Lectures of the Law Society of Upper Canada 1992, Administrative Law: Principles, Practice and Pluralism; David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 374-79; P.P. Craig, Administrative Law, 5th edn. (London: Thomson, 2003) at 398-405, 536-40; Capital Cities Communications Inc. v. CRTC, [1978] 2 S.C.R. 141 at 171; Vidal v. Canada (Minister of Employment and Immigration) (1991), 49 Admin. L.R. 118 (F.C.T.D.) at 131; Ainsley at 82-83.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-30", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 58–60", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Legal rules and discretion do not inhabit different universes, but are arrayed along a continuum. In our system of law and government, the exercise of even the broadest grant of statutory discretion which may adversely affect individuals is never absolute and beyond legal control: Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140. (per Rand J.). Conversely, few, if any, legal rules admit of no element of discretion in their interpretation and application: Baker at para. 54.\n\nAlthough not legally binding on a decision-maker in the sense that it may be be an error of law to misinterpret or misapply them, guidelines may validly influence a decision-maker’s conduct. Indeed, in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, McIntyre J., writing for the Court, said (at 6): The fact that the Minister in his policy guidelines issued in the Notice to Importers employed the words: “If Canadian product is not offered at the market price, a permit will normally be issued; …” does not fetter the exercise of that discretion. [Emphasis added] The line between law and guideline was further blurred by Baker at para. 72, where, writing for a majority of the Court, L’Heureux-Dubé J. said that the fact that administrative action is contrary to a guideline “is of great help” in assessing whether it is unreasonable.\n\nThe use of guidelines, and other “soft law” techniques, to achieve an acceptable level of consistency in administrative decisions is particularly important for tribunals exercising discretion, whether on procedural, evidential or substantive issues, in the performance of adjudicative functions. This is especially true for large tribunals, such as the Board, which sit in panels; in the case of the RPD, as already noted, a panel typically comprises a single member.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-31", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 61–62", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is fundamental to the idea of justice that adjudicators, whether in administrative tribunals or courts, strive to ensure that similar cases receive the same treatment. This point was made eloquently by Gonthier J. when writing for the majority in Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282 at 327 (“Consolidated-Bathurst”): It is obvious that coherence in administrative decision-making must be fostered. The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be “difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one”. [Citation omitted]\n\nNonetheless, while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision-makers may not apply them as if they were law. Thus, a decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in the light of the particular facts, may be set aside, on the ground that the decision-maker’s exercise of discretion was unlawfully fettered: see, for example, Maple Lodge Farms at 7. This level of compliance may only be achieved through the exercise of a statutory power to make “hard” law, through, for example, regulations or statutory rules made in accordance with statutorily prescribed procedure.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-32", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 63–64", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In addition, the validity of a rule or policy itself has sometimes been impugned independently of its application in the making of a particular decision. Ainsley is the best known example. That case concerned a challenge to the validity of a non-statutory policy statement issued by the Ontario Securities Commission setting out business practices which would satisfy the public interest in the marketing of penny stocks by certain securities dealers. The policy also stated that the Commission would not necessarily impose a sanction for non-compliance on a dealer under its “public interest” jurisdiction, but would consider the particular circumstances of each case.\n\nWriting for the Court in Ainsley, Doherty J.A. adopted the criteria formulated by the trial judge for determining if the policy statement was “a mere guideline” or was “mandatory”, namely, its language, the practical effect of non-compliance, and the expectations of the agency and its staff regarding its implementation. On the basis of these criteria, Doherty J.A. concluded that the policy statement was invalid. He emphasized, in particular, its minute detail, which “reads like a statute or regulation” (at 85), and the threat of sanctions for non-compliance. He found this threat to be implicit in the Commission’s pronouncement that the business practices it described complied with the public interest, and was evident in the attitude of enforcement staff ,who treated the policy as if it were a statute or regulation, breach of which was liable to trigger enforcement proceedings. (ii) Guideline 7 and the fettering of discretion (a) Is Guideline 7 delegated legislation?", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-33", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 65–67", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "An initial question is whether guidelines issued under IRPA, paragraph 159(1)(h) constitute delegated legislation, having the full force of law (“hard law”). If they do, Guideline 7 can no more be characterized as an unlawful fetter on members’ exercise of discretion with respect to the order of questioning than could a rule of procedure to the same effect issued under IRPA, paragraph 161(1))(a): Bell Canada v. Canadian Telephone Association Employees, 2003 SCC 36, [2003] 1 S.C.R. 884 at para 35 (“Bell Canada”).\n\nIn my view, despite the express statutory authority of the Chairperson to issue guidelines, they do not have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them. The word “guideline” itself normally suggests some operating principle or general norm, which does not necessarily determine the result of every dispute.\n\nHowever, the meaning of “guideline” in a statute may depend on context. For example, in Society of the Friends of Oldman River v. Canada (Minister of the Environment), [1992] 1 S.C.R. 3 at 33-37, La Forest J. upheld the validity of mandatory environmental assessment guidelines issued under section 6 of the Department of the Environment Act, R.S.C. 1985, c. E-10, which, he held, constituted delegated legislation and, as such, were legally binding.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-34", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 68–70", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, Oldman River is distinguishable from the case before us. Section 6 of the Department of the Environment Act provided that guidelines were to be issued by an “order” (“arrêté”) of the Minister and approved by the Cabinet. In contrast, only rules issued by the Chairperson require Cabinet approval, guidelines (“directives”) do not. It would make little sense for IRPA to have conferred powers on the Chairperson to issue two types of legislative instrument, guidelines and rules, specified that rules must have Cabinet approval, and yet given both the same legal effect.\n\nGuidelines issued by the Human Rights Commission pursuant to subsection 27(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, have also been treated as capable of having the full force of law, even though they are made by an independent administrative agency and are not subject to Cabinet approval: Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.) at paras. 136-41; Bell Canada at paras. 35-38.\n\nIn Bell Canada, LeBel J. held (at para. 37), “on a functional and purposive approach to the nature” of the Commission’s guidelines, that they were “akin to regulations”, a conclusion supported by the use of the word “ordonnance” in the French text of subsection 27(2) of the Canadian Human Rights Act. In addition, subsection 27(3) expressly provides that guidelines issued under subsection 27(2) are binding on the Commission and on the person or panel assigned to inquire into a complaint of discrimination referred by the Commission under subsection 49(2) of the Act.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-35", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 71–74", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my opinion, the scheme of IRPA is different, particularly the inclusion of a potentially overlapping rule-making power and the absence of a provision that guidelines are binding on adjudicators. In addition, the word “directives” in the French text of paragraph 159(1)(h) suggests a less legally authoritative instrument than “ordonnance”.\n\nI conclude, therefore, that, even though issued under an express statutory grant of power, guidelines issued under IRPA, paragraph 159(1)(h) cannot have the same legally binding effect on members as statutory rules may. (b) Is Guideline 7 an unlawful fetter on members’ discretion?\n\nSince guidelines issued by the Chairperson of the Board do not have the full force of law, the next question is whether, in its language and effect, Guideline 7 unduly fetters RPD members’ discretion to determine for themselves, case-by-case, the order of questioning at refugee protection hearings. In my opinion, language is likely to be a more important factor than effect in determining whether Guideline 7 constitutes an unlawful fetter. It is inherently difficult to predict how decision-makers will apply a guideline, especially in an agency, like the Board, with a large membership sitting in panels.\n\nConsequently, since the language of Guideline 7 expressly permits members to depart from the standard order of questioning in exceptional circumstances, the Court should be slow to conclude that members will regard themselves as bound to follow the standard order, in the absence of clear evidence to the contrary, such as that members have routinely refused to consider whether the facts of particular cases require an exception to be made.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-36", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 75–77", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "I turn first to language. The Board’s Policy on the Use of Chairperson’s Guidelines, issued in 2003, states that guidelines are not legally binding on members: section 6. The introduction to Guideline 7 states: “The guidelines apply to most cases heard by the RPD. However, in compelling or exceptional circumstances, the members will use their discretion not to apply some guidelines or to apply them less strictly”\n\nThe text of the provisions of Guideline 7 of most immediate relevance to this appeal. Paragraph 19 states that it “will be” standard practice for the RPO to question the claimant first; this is less obligatory than “must” or some similarly mandatory language. The discretionary element of Guideline 7 is emphasized in paragraph 19, which provides that, while “the standard practice will be for the RPO to start questioning the claimant” (emphasis added), a member may vary the order “in exceptional circumstances”.\n\nClaimants who believe that exceptional circumstances exist in their case must apply to the RPD, before the start of the hearing, for a change in the order of questioning. The examples, and they are only examples, of exceptional circumstances given in paragraph 23 suggest that only the most unusual cases will warrant a variation. However, the parameters of “exceptional circumstances” will no doubt be made more precise, and likely expanded incrementally, on a case-by-case basis.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-37", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 78–79", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "I agree with Justice Blanchard’s conclusion (at para. 119) that the language of Guideline 7 is more than “a recommended but optional process”. However, as Maple Lodge Farms makes clear, the fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision-maker may deviate from normal practice in the light of particular facts: see Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195.\n\nTo turn to the effect of Guideline 7, there was evidence that, when requested by counsel, members of the RPD had exercised their discretion and varied the standard order of questioning in cases which they regarded as exceptional. No such request was made on behalf of Mr Thamotharem. In any event, members must permit a claimant to be questioned first by her or his counsel when the duty of fairness so requires.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-38", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 80–82", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In at least one case, however, a member wrongly regarded himself as having no discretion to vary the standard order of questioning prescribed in Guideline 7. On July 3, 2005, this decision was set aside on consent on an application for judicial review, on the ground that the member had fettered the exercise of his discretion, and the matter remitted for re-determination by a different member of the RPD: Baskaran v. Canada (Minister of Citizenship and Immigration) (Court File No. IMM-7189-04). Nonetheless, the fact that some members may erroneously believe that Guideline 7 removes their discretion to depart from the standard practice in exceptional circumstances does not warrant invalidating the Guideline. In such cases, the appropriate remedy for an unsuccessful claimant is to seek judicial review to have the RPD’s decision set aside.\n\nThere was also evidence from Professor Donald Galloway, an immigration and refugee law scholar, a consultant to the Board and a former Board member, that RPD members would feel constrained from departing from the standard order of questioning. However, he did not base his opinion on the actual conduct of members with respect to Guideline 7.\n\nIn short, those challenging the validity of Guideline 7 did not produce evidence establishing on a balance of probabilities that members rigidly apply the standard order of questioning without regard to its appropriateness in particular circumstances.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-39", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 83", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "I recognize that members of the RPD must perform their adjudicative functions without improper influence from others, including the Chairperson and other members of the Board. However, the jurisprudence also recognizes that administrative agencies must be free to devise processes for ensuring an acceptable level of consistency and quality in their decisions, a particular challenge for large tribunals which, like the Board, sit in panels.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-40", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 84", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Most notably, the Supreme Court of Canada in Consolidated-Bathurst upheld the Ontario Labour Relations Board’s practice of inviting members of panels who had heard but not yet decided cases to bring them to “full Board meetings”, where the legal or policy issues that they raised could be discussed in the absence of the parties. This practice was held not to impinge improperly on members’ adjudicative independence, or to breach the principle of procedural fairness that those who hear must also decide. Writing for the majority of the Court, Gonthier J. said (at 340): The institutionalization of the consultation process adopted by the Board provides a framework within which the experience of the chairman, vice-chairmen and members of the Board can be shared to improve the overall quality of its decisions. Although respect for the judicial independence of Board members will impede total coherence in decision making, the Board through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of coherence possible under these circumstances. … The advantages of an institutionalized consultation process are obvious and I cannot agree with the proposition that this practice necessarily conflicts with the rules of natural justice. The rules of natural justice must have the flexibility required to take into account the institutional pressures faced by modern administrative tribunals as well as the risks inherent in such a practice. …", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-41", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 85–86", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the arrangements made for discussions within an agency with members who have heard a case must not be so coercive as to raise a reasonable apprehension that members’ ability to decide cases free from improper constraints has been undermined: Tremblay v. Québec (Commission des affaires sociales), [1992] 1 S.C.R. 952.\n\nEvidence that the Immigration and Refugee Board “monitors” members’ deviations from the standard order of questioning does not, in my opinion, create the kind of coercive environment which would make Guideline 7 an improper fetter on members’ exercise of their decision-making powers. On a voluntary basis, members complete, infrequently and inconsistently, a hearing information sheet asking them, among other things, to explain when and why they had not followed “standard practice” on the order of questioning. There was no evidence that any member had been threatened with a sanction for non-compliance. Given the Board’s legitimate interest in promoting consistency, I do not find it at all sinister that the Board does not attempt to monitor the frequency of members’ compliance with the “standard practice”.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-42", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 87–89", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nor is it an infringement of members’ independence that they are expected to explain in their reasons why a case is exceptional and warrants a departure from the standard order of questioning. Such an expectation serves the interests of coherence and consistency in the Board’s decision-making in at least two ways. First, it helps to ensure that members do not arbitrarily ignore Guideline 7. Second, it is a way of developing criteria for determining if circumstances are “exceptional” for the purpose of paragraph 23 and of providing guidance to other members, and to the Bar, on the exercise of discretion to depart from the standrd order of questioning in future cases.\n\nIn my opinion, therefore, the evidence in the present case does not establish that a reasonable person would think that RPD members’ independence was unduly constrained by Guideline 7, particularly in view of: the terms of the Guideline; the evidence of members’ deviation from “standard practice”; and the need for the Board, the largest administrative agency in Canada, to attain an acceptable level of consistency at hearings, conducted mostly be single members.\n\nAdjudicative “independence” is not an all or nothing thing, but is a question of degree. The independence of judges, for example, is balanced against public accountability, through the Canadian Judicial Council, for misconduct. The independence of members of administrative agencies must be balanced against the institutional interest of the agency in the quality and consistency of the decisions, from which there are normally only limited rights of access to the courts, rendered by individual members in the agency’s name. (iii) Is Guideline 7 invalid because it is a rule of procedure and should therefore have been issued under IRPA, paragraph 161(1)(a)?", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-43", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 90–91", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "On its face, the power granted by IRPA, paragraph 159(1)(h) to the Chairperson to issue guidelines in writing “to assist members in carrying out their duties” is broad enough to include a guideline issued in respect of the exercise of members’ discretion in procedural, evidential or substantive matters. Members’ “duties” include the conduct of hearings “as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”: IRPA, section 162. In my view, structuring members’ discretion over the order of questioning is within the subject-matter of the guidelines contemplated by section 159.\n\nIn any event, the Chairperson did not need an express grant of statutory authority to issue guidelines to members. Paragraph 159(1)(h) puts the question beyond dispute, establishes a duty to consult before a guideline is issued, and, perhaps, enhances their legitimacy.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-44", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 92", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "An express statutory power to issue guidelines was first conferred on the Chairperson of the Board in 1993, as a result of an amendment to the former Immigration Act by Bill C-86. Appearing before the Committee of the House examining the Bill, Mr Gordon Fairweather, the then Chairperson of the Board welcomed this addition to the Board’s powers: I’m also pleased that the minister has responded to the need for new tools for managing the board itself. In the board’s desire to ensure consistency of decision-making, we welcome the legislative provision allowing for guidelines…. The provision will reinforce my authority, after appropriate consultations, and the courts have been very specific about saying, no guidelines until you have consulted widely with the caring agencies, the immigration bar, and other non-governmental organizations. But the courts have given the green light for such provision provided we go through those consultations. This provision will reinforce my authority, or the chair’s authority – that is a little less pompous – after appropriate consultations to direct members toward preferred positions and therefore foster consistency in decisions. [Emphasis added] (Canada, House of Commons, Legislative Committee on Bill C-86, Minutes of Proceedings and Evidence, 34th Parl., 3d sess., Issue 5 (July 30, 1992) at 80)", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-45", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 93–95", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the present appeal raises an important question about the relationship between the Chairperson’s powers to issue guidelines and rules. In particular, are these grants of legal authority cumulative so that, for the most part, the scope of each is to be determined independently of the other? Or, is the Chairperson’s power to issue guidelines implicitly limited by the power to make rules of procedure? If it is, then a change to the procedure of any Division of the Board may only be effected through a rule of procedure issued under paragraph 161(1)(a) which has been approved by Cabinet and subjected to Parliamentary scrutiny in accordance with subsection 161(2).\n\nThe argument in the present case is that Guideline 7 is a rule of procedure and, since it reforms the existing procedure of the RPD, should have been issued under paragraph 161(1)(a), received Cabinet approval and been laid before Parliament. The power of the Chairperson to issue guidelines may not be used to avoid the political accountability mechanisms applicable to statutory rules issued under subsection 161(1).\n\nFor this purpose, the fact that Guideline 7 permits RPD members to exercise their discretion in “exceptional circumstances” to deviate from “standard practice” in the order of questioning does not prevent it from being a rule of procedure: rules of procedure commonly confer discretion to be exercised in the light of particular facts.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-46", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 96–98", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "An analogous line of reasoning is found in the Ontario Court of Appeal’s decision in Ainsley, where it was said that the Ontario Securities Commission’s policy statement prescribing business practices of penny stock dealers which would satisfy the statutory public interest standard was invalid, because it was in substance and effect “a mandatory provision having the effect of law” (at 84). In my opinion, however, Ainsley should be applied to the present case with some caution.\n\nFirst, when Ainsley was decided, the Commission had no express statutory power to issue guidelines and no statutorily recognized role in the regulation-making process. In contrast, the Chairperson of the Board has a broad statutory power to issue guidelines and, subject to Cabinet approval, to make rules respecting a broad range of topics, including procedure.\n\nAdmittedly, the Board’s rules of procedure (as well, of course, as IRPA itself and regulations made under it by the Governor in Council) have a higher legal status than guidelines, in the sense that, if a guideline and a rule conflict, the rule prevails.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-47", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 99–101", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, the policy statement considered in Ainsley was directed at businesses regulated by the Commission and was designed to modify their practices by linking compliance with the policy to the Commission’s prosecutorial power to institute enforcement proceedings, which could result in the loss of a licence by businesses not operating in “the public interest”. Guideline 7, on the other hand, is directed at the practice of RPD members in the conduct of their proceedings. It does not impose de facto duties on members of the public or deprive them of an existing right. Guideline 7 lacks the kind of coercive threat, against either claimants or members, in the event of non-compliance, which was identified as important to the decision in Ainsley.\n\nThe Commission’s promulgation of detailed industry standards, other than through enforcement proceedings against individuals, when it lacked any legislative power, raised rule of law concerns. In my opinion, the same cannot plausibly be said of the Chairperson’s decision to introduce a standard order of questioning through the statutory power to issue guidelines, rather than his power to issue rules.\n\nThird, while the Board can only issue formal statutory rules of procedure with Cabinet approval, tribunals often do not require Cabinet approval of their rules. In Ontario, for example, the procedural rules of tribunals to which the province’s general code of administrative procedure applies are not subject to Cabinet approval: Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, subsection 25.1(1). Hence, it cannot be said to be a principle of our system of law and government that administrative tribunals’ rules of procedure require political approval.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-48", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 102–105", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Fourth, while Guideline 7 changed the way in which the Board conducts most of its hearings, it represents, in my view, more of a filling in of detail in the procedural model established by IRPA and the Refugee Protection Division Rules, than “fundamental procedural change” or “sweeping procedural reform”, to use the characterization in the memorandum of the intervener, the Canadian Council for Refugees.\n\nFor example, rule 16(e) includes the questioning of witnesses in the RPO’s duties, but is silent on the precise point in the hearing when the questioning is to occur. Similarly, while rule 25 deals with the intervention of the Minister, it does not specify when the Minister will lead evidence and make submissions. Rule 38 permits a party to call witnesses, but does not say when they will testify.\n\nFifth, the differences in the legal characteristics of statutory rules of procedure and Guideline 7 should not be overstated. Rules of procedure commonly permit those to whom they are directed to depart from them in the interests of justice and efficiency. Thus, rule 69 of the Refugee Protection Division Rules permits a member to change a requirement of a rule or excuse a person from it, and to extend or shorten a time period. Failure to comply with a requirement of the Rules does not make a proceeding invalid: rule 70.\n\nFinally, as I have already indicated, the Chairperson’s power to issue guidelines extends, on its face, to matters of procedure. Its exercise is not made expressly subject to paragraph 161(1)(a), although a guideline issued under paragraph 159(1)(h) which is inconsistent with a formal rule of procedure issued under paragraph 161(1)(a) will be invalid.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-49", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 106–109", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the basis of the foregoing analysis, I conclude that, on procedural issues, the Chairperson’s guideline-issuing and rule-making powers overlap. That the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) will not normally invalidate it, provided that it does not unlawfully fetter members’ exercise of their adjudicative discretion, which, for reasons already given, I have concluded that it does not.\n\nIn my opinion, the Chairperson may choose through which legislative instrument to introduce a change to the procedures of any of the three Divisions of the Board. Parliament should not be taken to have implicitly imposed a rigidity on the administrative scheme by preventing the Chairperson from issuing a guideline to introduce procedural change or clarification.\n\nI do not say that the Chairperson’s discretion to choose between a guideline or a rule is beyond judicial review. However, it was not unreasonable for the Chairperson to choose to implement the standard order of questioning through the more flexible legislative instrument, the guideline, rather than through a formal rule of procedure.\n\nFirst, Guideline 7 is not a comprehensive code of procedure nor, when considered in the context of the refugee determination process as a whole, is it inconsistent with the existing procedural model for RPD hearings. Second, the procedural innovation of standard order questioning may well require modification in the light of cumulated experience. Fine-tuning and adjustments of this kind are more readily accomplished through a guideline than a formal rule. Parliament should not be taken to have intended the Chairperson to obtain Cabinet approval for such changes. E. CONCLUSIONS", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-50", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 110–113", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "For these reasons, I would allow the Minister’s appeal, dismiss Mr Thamotharem’s cross-appeal, set aside the order of the Federal Court, and dismiss the application for judicial review. I would answer the first two certified questions as follows: 1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard? No 2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion? No.\n\nSince I would dismiss the application for judicial review, the third question does not arise and need not be answered. “John M. Evans” J.A. “I agree. Robert Décary J.A.” SHARLOW J.A. (Concurring)\n\nI agree with my colleague Justice Evans that this appeal should be allowed, but I reach that conclusion by a different route.\n\nAs Justice Evans explains, IRPA gives the Chairperson two separate powers. One is the power in paragraph 159(1)(h) to issue guidelines in writing to assist Members in carrying out their duties. The other is the power in paragraph 161(1)(a) to make rules respecting the activities, practice and procedure of the Board, subject to the approval of the Governor in Council. Both powers are to be exercised in consultation with the Deputy Chairpersons and the Director General of the Immigration Division. In my view, these two powers are different in substantive and functional terms, and are not interchangeable at the will of the Chairperson.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-51", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 114–116", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The subject of Guideline 7 is the order of proceeding in refugee hearings. That is a matter respecting the activities, practice and procedure of the Board, analogous to the subject matter of the procedural rules of courts. In my view, the imposition of a standard practice for refugee determination hearings should have been the subject of a rule of procedure, not a guideline.\n\nI make no comment on the wisdom of the Chairperson’s determination that the standard practice in refugee hearings, barring exceptional circumstances, should be for the RPO or the Member to start questioning the refugee claimant. That is a determination that the Chairperson was entitled to make. However, to put that determination into practice while respecting the limits of the statutory authority of the Chairperson, the Chairperson should have drafted a rule to that effect, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, and sought the approval of the Governor in Council.\n\nJustice Evans notes that some commentators have suggested that the implementation of a rule under paragraph 161(1)(a) is more onerous in administrative and bureaucratic terms than the implementation of a guideline under paragraph 159(1)(h). That appears to me to be an unduly negative characterization of the legislated requirement for the approval of the Governor in Council, Parliament’s chosen mechanism of oversight for the Chairperson’s rule making power under paragraph 161(1)(a). It is also belied by the facts of this case, which indicates that the development of Guideline 7 took approximately four years. I doubt that a rule with the same content would necessarily have taken longer than that.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-52", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 117–120", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The more important question in this case is whether the Chairperson’s erroneous decision to implement a guideline rather than a rule to establish a standard practice for refugee hearings provides a sufficient basis in itself for setting aside a negative refugee determination made by a Member who requires a refugee claimant to submit to questions from the RPO or the Member before presenting his or her own case.\n\nI agree with Justice Evans that the standard procedure outlined in Guideline 7 is not in itself procedurally unfair and that Guideline 7, properly understood, does not unlawfully fetter the discretion of Members. In my view, despite Guideline 7, each Member continues to have the unfettered discretion to adopt any order of procedure required by the exigencies of each claim to which the Member is assigned.\n\nIt may be the case that a particular Member may conclude incorrectly that Guideline 7 deprives the Member of the discretion to permit a refugee claimant to present his or her case before submitting to questioning from the RPO or the Member. If so, it is arguable that a negative refugee determination by that Member is subject to being set aside if (1) the Member refused the request of a refugee claimant to proceed first and required the refugee claimant to submit to questioning by the RPO or the Member before presenting his or her case, and (2) it is established that, but for Guideline 7, the Member would have permitted the refugee claimant to present his or her case first. In the case of Mr. Thamotharem, those conditions have not been met.\n\nFor these reasons, I would dispose of this appeal as proposed by Justice Evans, and I would answer the certified questions as he proposes. “K. Sharlow” J.A. FEDERAL COURT OF APPEAL", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-37227-1", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 1–6", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The applicant is a citizen of Grenada. In 1999, she entered Canada as a visitor. She never left. She has stayed in Canada, contrary to Canada’s immigration laws.\n\nFor her first seven years in Canada, the appellant worked and earned enough to sustain herself. However, in 2006, her health began to deteriorate. She could no longer work.\n\nSince 2006, the appellant has received some medical care without having to pay for it, but much more medical care is required. Her medical condition has become most serious.\n\nIn September 2008, still in Canada contrary to Canada’s immigration laws, the appellant took steps to try to regularize her status in Canada. She applied to Citizenship and Immigration Canada for permanent residence status. A few months later, she applied to Citizenship and Immigration Canada for a temporary residence permit so she could become eligible for health coverage under the Ontario Health Insurance Program. In both applications, she asked for a waiver of the fees. The waivers were refused, the fees remained unpaid, and so the applications were never considered.\n\nIn May 2009, the appellant applied to Citizenship and Immigration Canada for medical coverage under its Interim Federal Health Program. As we shall see, this Program is actually embodied in one of Canada’s immigration laws, Order in Council OIC 1957-11/848. Under this Order in Council, Citizenship and Immigration Canada covers the cost of emergency medical care for indigent persons that it has legally admitted to Canada.\n\nA Director with Citizenship and Immigration Canada found that the appellant was ineligible to receive medical coverage and rejected her application.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-2", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 7–11", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant brought an application for judicial review to the Federal Court, submitting that she was eligible for medical coverage. In the alternative, she submitted that her exclusion from medical coverage infringed her rights under sections 7 and 15 of the Charter. She requested the Federal Court to “read” the Order in Council as including her – in effect, to make this law compliant with sections 7 and 15 of the Charter by extending its terms to provide her with medical coverage.\n\nIf the Federal Court accepted the appellant’s request, the curiosity of some might be piqued: even though the appellant has disregarded Canada’s immigration laws for the better part of a decade, she would be able to take one of Canada’s immigration laws (the Order in Council), get a court to include her by extending the scope of that law, and then benefit from that extension while remaining in Canada contrary to Canada’s immigration laws.\n\nBut the Federal Court (per Justice Zinn) did not accept the appellant’s request to extend the scope of the Order in Council. It rejected her submissions and dismissed the application for judicial review: 2010 FC 810 (main decision) and 2010 FC 926 (decision on motion for reconsideration).\n\nThe appellant appeals to this Court, making submissions substantially similar to those that were made in the Federal Court.\n\nI also reject the appellant’s submissions and would dismiss the appeal. A. The Order in Council", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-3", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 12–13", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Order in Council OIC 1957-11/848, passed on June 20, 1957, provides as follows: The Board recommends that Order in Council P.C. 4/3263 of June 6, 1952, be revoked, and that the Department of National Health and Welfare be authorized to pay the costs of medical and dental care, hospitalization, and any expenses incidental thereto, on behalf of: (a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment, and (b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer, in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the Immigration Medical Services of the Department National Health and Welfare. B. The Director’s decision\n\nThe decision-maker on the appellant’s application to Citizenship and Immigration Canada for medical coverage was the Director, Program Management and Control, Health Management Branch.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-4", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 14–16", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "As mentioned above, the Director denied the appellant medical coverage. The Director’s decision is as follows: Health care services are provided by the Provinces and Territories. As such, access or denial to health care rests with those Provincial and Territorial authorities, in this case the Province of Ontario. The Interim Federal Health Program is an interim measure to provide emergency and essential health care coverage to eligible individuals who do not qualify for private or public health coverage and who demonstrate financial need. IFHP services aim to serve individuals in the following four groups of recipients: ● Refugee claimants; ● Resettled Refugees; ● Persons detained under the Immigration and Refugee Protection Act (IRPA); and, ● Victims of Trafficking in Persons (VTIPs). As you have not provided any information to demonstrate that your client falls into any of the above-mentioned categories, I regret to inform you that your request for IFHP coverage cannot be approved. Please be advised that your client has no active immigration application with Citizenship and Immigration Canada (CIC). C. The standard of review applicable to the Director’s decision\n\nAs mentioned above, the appellant applied to the Federal Court for judicial review of the Director’s decision.\n\nThe Federal Court did not explicitly select a standard of review for its consideration of the Director’s decision. However, it did find, in effect on a correctness standard, that the appellant did not qualify for medical coverage.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-5", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 17–18", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The first step in determining the standard of review is to appreciate the nature of the decision in issue. As mentioned at the outset, the Interim Federal Health Program mentioned by the Director is embodied in an Order in Council (P.C. 157-11/848) and the decision-maker is a delegate of the Minister of Citizenship and Immigration Canada. In effect, we are reviewing the legal interpretation and application of an Order in Council by a delegate of the Minister.\n\nThe Supreme Court has told us that the standard of review will “usually” or “normally” be reasonableness where “a tribunal” is interpreting its “own statute” or “statutes closely connected to its function, with which it will have particular familiarity”: 2008 SCC 9 at paragraph 54, [2008] 1 S.C.R. 190; Celgene Corp. v. Canada (A.G.), 2011 SCC 1 at paragraph 34, 327 D.L.R. (4th) 513; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paragraph 26, 328 D.L.R. (4th) 1.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-6", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 19", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "I am inclined to find that the Director is subject to this “normal” or “usual” position of deference to his decision-making. But there exists considerable uncertainty on this, arising from Dunsmuir itself, previous case law, and the unusual circumstances of this case: (a) We are dealing with a Ministerial delegate, not a “tribunal” in any formal sense. In Dunsmuir the Supreme Court used the word “tribunal” on this point. In my view, although it is not perfectly clear, in Dunsmuir the Supreme Court did not intend to restrict this position of deference to interpretations by formal tribunals. Throughout its discussion of the standard of review, the Supreme Court used the terms “tribunal,” “decision maker,” “exercises of public authority,” “administrative bodies,” “adjudicative tribunal,” “adjudicative bodies,” “administrative tribunal,” and “administrative actors”: Dunsmuir, supra at paragraphs 28-29, 31, 33, 41, 47-50, 52, 54-56, and 59. It seems to have used the terms interchangeably and, collectively, they are wide enough to embrace a Ministerial delegate such as the Director. (b) In a relatively recent decision, albeit before Dunsmuir, the Supreme Court did not defer to the interpretation of a Ministerial delegate who was interpreting a statute closely related to his function: Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, (a visa officer making an assessment under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I‑2); see also Canada (Minister of Citizenship and Immigration) v. Patel, 2011 FCA 187 and cases cited at paragraph 27 of Patel.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-7", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 19", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is certainly consistent with how we today approach decisions involving some other Ministerial delegates. For example, in the income tax context, income tax assessors – Ministerial delegates – are very familiar with the Income Tax Act. One might think that the normal administrative law standard of review analysis would apply to appeals of these administrators, with deference to their legal interpretations being the result: see, e.g., Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 and Dunsmuir, supra at paragraph 54. But it does not. The Tax Court of Canada, sitting in appeal on income tax assessments, and this Court do not defer at all to the statutory interpretations of the Minister’s delegate. (c) The Supreme Court spoke in Dunsmuir of deference to interpretations of certain types of “statutes.” Did it mean to restrict this principle to “statutes”? There would appear to be no principled basis to do so. Deference probably also applies to interpretations of other types of laws, such as the Order in Council in this case. (d) The Director’s title seems to suggest that he administers programs such as this, and so he could be considered to be interpreting what Dunsmuir described as a law “closely connected with [his] function,” warranting our deference. But there is no evidence in the record on this one way or the other, nor would one expect there to be such evidence given the narrow nature of a record on judicial review.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-8", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 19", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "(e) The position of deference for administrative interpretations of statutes is said in Dunsmuir to apply only “usually” or “normally.” Does this qualification refer to the situations mentioned in Dunsmuir where the correctness standard applies? Perhaps not, as these situations largely do not involve issues of statutory interpretation. Does this qualification refer to some as yet unidentified situations? We simply do not know. (f) In this particular case, as we shall see, the Director did not engage in any actual interpretation of the Order in Council. Rather, he simply interpreted and applied an administrative policy made under that Order in Council. Does this mean that the Director’s decision is subject to correctness review? I am not so sure. There are statements in Dunsmuir that suggest that the Director’s failure to interpret the Order in Council may not matter. In two places in Dunsmuir, the Supreme Court suggests that in assessing the substance of decision-making under the reasonableness standard we are to examine the outcome reached by the decision-maker and not necessarily the plausibility of the reasons actually given. At paragraph 47, we are directed to ask ourselves “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and at paragraph 48 we are told that an administrative decision can be supported on the basis of reasons that “could [have] be[en] offered” [emphasis added]. (g) I am not alone in my doubts on this issue. Recently, this Court discussed Dunsmuir and the standard of review that should apply to the Governor in Council’s interpretation of a statute. It found the law in this area to be unclear: Global Wireless Management Corp. v.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-9", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 19–25", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Public Mobile Inc., 2011 FCA 194 at paragraph 35.\n\nFortunately, on the facts of this case, I need not decide whether the standard of review is correctness or the deferential standard of reasonableness. Regardless of the standard of review, the Director’s decision passes muster: as the Director found, the appellant was not entitled to receive medical coverage in this case. D. The Federal Court’s conclusions concerning the decision of the Director\n\nThe Federal Court found that the Director fettered his discretion by following a departmental guideline instead of interpreting the actual wording of the Order in Council. In its view, the Director was entitled to read and consider the departmental guideline but should have interpreted the actual wording of the Order in Council, the law that governed his discretion.\n\nHowever, the Federal Court held that this was immaterial: if the Director had regard to the Order in Council, he would have had to rule that the appellant was not entitled to receive coverage. Therefore, the Director’s decision could stand.\n\nFor the purposes of this appeal, the Federal Court’s bottom-line conclusion was that the appellant was ineligible under the Order in Council to receive medical coverage. E. Assessment of the Federal Court’s decision that the appellant was ineligible to receive medical coverage under the Order in Council (1) Introduction and overview\n\nIn my view, the Federal Court’s bottom line conclusion is correct: the appellant was ineligible to receive medical coverage under the Order in Council.\n\nIn reaching its conclusion, the Federal Court relied upon the plain meaning of the words in the Order in Council. It examined the history behind the Order in Council in order to see if there was some special significance behind some of the wording used in it.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-10", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 26", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court also placed particular emphasis upon a rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957: see the Federal Court’s reasons at paragraph 44. I agree with the Federal Court’s view that the Minister’s rationale was an important clue as to the intended scope of the Order in Council. It was right to place particular emphasis on it.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-11", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 27", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister’s rationale was as follows: THAT on occasion persons are referred for medical and hospital treatment during the time they are thought to be under the jurisdiction of the Immigration authorities but before it is possible to satisfactorily determine their status as immigrants as defined in the Immigration Act, and because of the urgent nature of the disabling condition, treatment cannot be prudently postponed until their exact status has been completely established. THAT in other instances persons who other than immigrants as defined who are temporarily under the jurisdiction of the Immigration authorities become urgently in need of medical care or hospital treatment, and at the time it is not humanely possible to defer medical action until the determination of who, if any third party, is financially responsible for the cost of such action; THAT it is considered to be in the public interest and necessary for the maintenance of good public relations between the two Federal Departments concerned and the large number of individuals, societies and other agencies who work closely in association with these Departments during the ordinary course of Immigration operations, that the existing authority which is restrictive by reason of the term “immigrant” and also by reason of the conditions of “time” which are applied, be changed to permit the Department of National Health and Welfare to render the necessary medical assistance in these instances; THAT both Departments undertake to administer this authority in such a way as to confine its use to those occasions only when circumstances render it the best course of action in the public interest, and only when humane interests more or less obligate the Departments to accept the responsibility;…", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-12", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 28–32", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court’s overall conclusion was as follows (at paragraph 51): Properly interpreted, Order-in-Council P.C. 157-11/848 does not apply to the applicant and she is not eligible for [Program] coverage. The applicant is not an “immigrant” in the sense that she is applying for permanent residence in Canada. The applicant is not temporarily under the jurisdiction of immigration authorities. Nor does the applicant fall into one of the narrow, well-defined categories for which immigration authorities feel responsible.\n\nI agree with the general thrust of the conclusion in this passage. But I wish to amplify and clarify it somewhat. This is needed because parties might interpret this passage in future cases to ascribe to the Order in Council a scope of medical coverage greater than is warranted by its terms.\n\nAs is seen from the text of the Order in Council quoted above at paragraph 12, the Order in Council contains two paragraphs, (a) and (b). Each of these sets out certain eligibility criteria. In addition to satisfying the eligibility criteria in paragraphs (a) or (b), a claimant must also “[lack] the financial resources to pay [the medical] expenses.” (2) Paragraph (a) of the Order in Council\n\nParagraph (a) of the Order in Council provides as follows: (a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment…\n\nThe Order in Council does not define “immigrant.” However, the term “immigrant” was defined in The Immigration Act, S.C. 1952, c. 42, subsection 2(i) as “a person who seeks admission to Canada for permanent residence.”", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-13", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 33", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Definitions of terms in statutes apply to terms contained in orders made under them: Interpretation Act, R.S.C. 1952, c. 158, section 38. It is not clear from the Order in Council whether it was made under the Immigration Act. But, in my view, the definition of “immigrant” in the Immigration Act sheds light on the meaning of that term in the Order in Council given that its subject-matter is related to immigration. I also note that the Minister of Health and Welfare, when offering a rationale for the Order in Council and in discussing its intended scope of coverage, referred to “immigrants as defined,” which must be taken to be “immigrants” as defined under the Immigration Act as it stood at that time: see paragraph 27, above.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-14", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 34–35", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, only those who seek admission to Canada for permanent residence on or before entry to Canada fall under paragraph (a). Paragraph (a) uses the term “immigrant,” meaning “a person who seeks admission to Canada for permanent residence,” and the express wording of paragraph (a) shows that person seeking permanent residence must satisfy one of two conditions: (i) The person seeking admission to Canada for permanent residence was “admitted at a port of entry” but has not “[arrived] at destination,” i.e., is in transit between entry and destination, or (ii) The person seeking admission to Canada for permanent residence is receiving “care and maintenance pending placement in employment.” A fair reading of the Order in Council is that the “care and maintenance” is at the direction of the immigration authorities who met the person upon entry to Canada. In my view, this is a fair reading in light of the history of the Order in Council, reviewed by the Federal Court at paragraphs 30-37, which shows that this medical coverage program was always focused on those entering Canada for the first time, not on those who had already arrived in Canada.\n\nThe appellant does not qualify under either of these conditions. She was not admitted into Canada as an applicant for permanent residence. She was not in transit between entry and destination. The immigration authorities did not direct her “care and maintenance pending placement in employment.” The appellant was simply a visitor who decided to remain in Canada, contrary to Canada’s immigration law. (3) Paragraph (b) of the Order in Council", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-15", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 36–39", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Paragraph (b) of the Order in Council provides as follows: (b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer…\n\nParagraph (b) refers to “a person,” not an “immigrant,” the term used in paragraph (a). As a result, paragraph (b) covers more than those seeking permanent residence in Canada.\n\nOne requirement that must be met under paragraph (b) is that the person is “subject to Immigration jurisdiction” or is a person “for whom the Immigration authorities feel responsible.”\n\nAt paragraph 46-50 of its reasons, the Federal Court interpreted these phrases in light of their plain wording and the rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957, excerpts of which are reproduced at paragraph 27, above. The Federal Court held (at paragraph 49) that those “subject to Immigration jurisdiction” are: …those persons who are passing through a port of entry and thus subject to the jurisdiction of the Immigration authorities, those persons whose status is being processed by the Immigration authorities, and those persons under detention and in the custody of the Immigration authorities. Persons temporarily under the jurisdiction of the Immigration authorities would also include refugee claimants… I agree with this conclusion and the reasons the Federal Court offered in support of it (at paragraphs 46-50).", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-16", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 40–43", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, by way of clarification, “those persons whose status is being processed by the Immigration authorities” must mean a person who sought that status before or upon entry to Canada. The Program could not have been intended to pay the medical expenses of those who arrive as visitors but remain illegally in Canada and who, after the better part of a decade of living illegally in Canada, suddenly choose to try to regularize their immigration status. Coverage for those persons would be against the whole tenor of the Order in Council, the history of the Order in Council, and the Minister’s stated rationale.\n\nParagraph (b) contains another requirement, expressed in the phrase “and who has been referred for examination and/or treatment by an authorized Immigration officer.” Does that phrase apply only to those who “[have] been referred for examination and/or treatment by an authorized Immigration officer”? Or does it apply both to those who “[have] been referred for examination and/or treatment by an authorized Immigration officer” and to those who are “subject to Immigration jurisdiction”?\n\nIn my view, the latter must be the correct interpretation: all those qualified under paragraph (b) must have been “referred for examination and/or treatment by an authorized Immigration officer.”\n\nThis interpretation is supported by the rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957: see paragraph 27, above.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-17", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 44–46", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, it must be remembered that in 1957, when the Order in Council was passed, Canada did not have a government-administered medicare scheme. Canadians were obligated to pay for their own health care or arrange for insurance coverage. Given that historical context, it does not make sense that all those “subject to Immigration jurisdiction” would have emergency medical coverage courtesy of the state, even if not specifically “referred for examination and/or treatment by an authorized Immigration officer”. I would add that there is no evidence before the Court to suggest that paragraph (b) was ever interpreted in that way.\n\nGiven this interpretation, the appellant does not qualify under paragraph (b). Upon entry to Canada, she did not claim a status other than visitor and the Immigration authorities were not processing any other status. She was not in the custody of the Immigration authorities, nor was she a refugee claimant. At no time was she “referred for examination and/or treatment by an authorized Immigration officer.” At no time did the “Immigration authorities feel responsible” for her. The appellant was just a visitor who decided to remain in Canada, contrary to Canada’s immigration law.\n\nFor the foregoing reasons, I find that the appellant was ineligible to receive medical coverage under the Order in Council. Therefore, the Director was correct in deciding to deny the appellant medical coverage and the Federal Court was correct in upholding the Director’s decision. F. Are the appellant’s rights under sections 7 and 15 of the Charter infringed? (1) A preliminary observation", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-18", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 47–51", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant raised the constitutional issues for the first time in her application for judicial review in the Federal Court and filed her evidence on those issues in that Court. Before the Director, she did not raise the constitutional issues or offer evidence on those issues.\n\nSometimes this is a fatal flaw that prevents the reviewing court from considering the constitutional issue on judicial review: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16 at paragraphs 38-40, [2005] 1 S.C.R. 257.\n\nIn this case, however, the objection would not lie if the Director did not have the jurisdiction to decide the constitutional issues: Okwuobi, supra, at paragraphs 28-34 and 38; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. In that circumstance, the Federal Court would be the first place where the constitutional issues could be determined.\n\nThe point was not argued before us and, given my ultimate disposition of the constitutional issues, I need not decide whether the objection lies in this case. (2) The standard of review\n\nWhat is the standard of review of the Federal Court’s decision on the constitutional issues? Since the Director did not consider the constitutional issues, we must look to the law concerning appellate standards of review, not administrative law standards of review.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-19", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 52–54", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The normal rule on appeals is that on pure questions of law or questions of mixed fact and law where the law predominates or is “extricable”, the standard of review is correctness. On questions of fact, or questions of mixed fact and law that are primarily factual in nature, the standard of review is palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401.\n\nOn occasion, the Supreme Court has stated that the appellate standard of review on decisions in constitutional cases is correctness and has used language to suggest that there can be no deference on any question, factual or legal, in a constitutional case: see, e.g., Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at paragraph 36, [2003] 3 S.C.R. 3 (“[d]eference ends, however, where the constitutional rights that the courts are charged with protecting begin”).\n\nI do not take these statements to mean that in a constitutional case an appellate court can readily interfere with factual findings and exercises of discretion that are heavily suffused with facts. There are many Supreme Court decisions that confirm that deference on such matters is still warranted: see, e.g., Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761 at paragraph 34, 2008 SCC 23; R. v. Buhay, [2003] 1 S.C.R. 631 at paragraphs 44-45, 2003 SCC 30; R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 68; R. v. Belnavis, [1997] 3 S.C.R. 341; Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 at paragraphs 188-189.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-20", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 55–58", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "In other words, the normal appellate standards of review discussed in Housen and H.L. apply in constitutional cases. However, as a practical matter, it is fair to say that correctness review probably happens more frequently in constitutional appeals because of the centrality of the legal issues in such appeals, and the fact that questions of constitutional law are often extricable from the questions of mixed fact and law that arise. (3) Section 7 of the Charter\n\nIn the Federal Court and in this Court, the appellant submits that her exclusion from medical coverage under the Order in Council infringes her section 7 rights to life and security of the person and her right not to be deprived thereof except in accordance with the principles of fundamental justice. (a) Rights to life and security of the person\n\nThe Federal Court found that the appellant’s rights to life and security of the person under section 7 of the Charter were infringed (at paragraph 91): The evidence before the Court establishes both that the [appellant] has experienced extreme delay in receiving medical treatment and that she has suffered severe psychological stress resulting from the uncertainty surrounding whether she will receive the medical treatment she needs. More importantly, the record before the Court establishes that the applicant’s exclusion from…coverage [under the Order in Council] has exposed her to a risk to her life as well as to long-term, and potentially irreversible, negative health consequences…. In my view, the applicant has established a deprivation of her right to life, liberty and security of the person that was caused by her exclusion from the [Order in Council].\n\nThis finding is open to challenge on two grounds. I would reject the first ground, but accept the second. - I -", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-21", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 59–61", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, the respondent disputes the Federal Court’s factual finding that the appellant has been exposed to delays and risks. On the facts, the respondent submits that the appellant has been able to obtain hospital admissions and surgeries when required and has been under the active care of both a family doctor and a number of specialists. The respondent adds that in Ontario, where the appellant lives, hospitals cannot deny emergency medical treatment to anyone, when to do so would endanger life: Public Hospitals Act, R.S.O. 1990, c. P.40. As a result, the respondent submits that the appellant has not established a serious deprivation of her right to life or security of the person under section 7 of the Charter.\n\nThe respondent’s submissions gain force from legal proposition that the effects on the protected interests under section 7 must be more than trivial. They must be serious: Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at paragraph 123, [2005] 1 S.C.R. 791; R. v. Morgentaler, [1988] 1 S.C.R. 30 at pages 56 and 173; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 at paragraph 60.\n\nBearing in mind the standard of review, I am not prepared to interfere with the Federal Court’s factual conclusion that the appellant was exposed to a significant risk to her life and health, a risk significant enough to trigger a violation of her rights to life and security of the person. The Federal Court had an evidentiary basis for its finding.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-22", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 62–63", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "At paragraphs 6 to 13, the Federal Court reviewed the appellant’s medical condition while she has remained in Canada. Before 2006, she only required minor medical care. After 2006, however, her medical needs have substantially increased as her health has worsened. Her conditions include uterine fibroids, uncontrolled hypertension, nephrotic syndrome, poorly controlled diabetes, a pulmonary embolism, decreased mobility, shortness of breath, hyperlipidemia and anxiety.\n\nThe Federal Court reviewed the appellant’s access to health care services and medication (at paragraphs 6 to 9). Before 2006, the appellant was able to work. She earned enough income to pay for the minor medical care and medication that she required. After 2006, her medical needs surpassed her ability to pay but she was still able to obtain some treatment. There is some evidence that she had had access to medical assistance at a community health centre. In 2008 she underwent an operation at Humber River Regional Hospital for the removal of uterine fibroids. She was billed for that surgery, but was unable to pay the bill. Later in 2008, the appellant was admitted to St. Michael’s Hospital for ten days for uncontrolled hypertension. In 2009, she was admitted to St. Michael’s Hospital for eight days during which a pulmonary embolism was found. She was unable to pay for the medication to treat that, but the hospital gave her a supply.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-23", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 64–66", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Evidence was before the Federal Court suggesting that the appellant’s access to health care services and medication was impaired. While eventually the appellant did have her uterine fibroids surgically removed at Humber River Regional Hospital in 2006, at first she was denied service at Woman’s College Hospital due to her lack of insurance coverage and her inability to pay. In 2008, while at St. Michael’s Hospital, a test aimed at determining the cause of her nephritic syndrome could not be performed owing to her inability to pay for treatment and for the medicine that might be necessary if complications arose.\n\nAlso before the Federal Court was expert medical evidence. Overall, this evidence, accepted by the Federal Court, suggested that (at paragraph 91): [if the appellant] were to not receive timely and appropriate health care and medications in the future, she would be at very high risk of immediate death (due to recurrent blood clots and pulmonary embolism), severe medium-term complications (such as kidney failure and subsequent requirement for dialysis), and other long-term complications of poorly-controlled diabetes and hypertension (such as blindness, foot ulcers, leg amputation, heart attack, and stroke).\n\nGiven this evidence, and bearing in mind the deferential standard of review that must be applied to the Federal Court’s findings of fact, I would not give effect to the respondent’s submission that the Federal Court erred in finding that the appellant was exposed to serious health risks. - II -", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-24", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 67–70", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "As mentioned above, based on this evidence, the Federal Court found that the Order in Council created a risk to the appellant. That is true in the sense that if the Order in Council were broader and provided her with all of the treatment and medication she needs, all risk would be averted. But that is not sufficient legally to demonstrate that the Order in Council has caused injury to the appellant’s rights to life and security of the person.\n\nIt is incumbent on the appellant to establish that the failure of the Order in Council to provide medical coverage to her is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter: TrueHope Nutritional Support Limited v. Canada (A.G.), 2011 FCA 114 at paragraph 11.\n\nThe provision of public health coverage and the regulation of access to it is primarily the responsibility of the provinces and the territories, with the federal government playing a role in funding, the setting of standards under the Canada Health Act, R.S.C. 1985, c C-6 and, occasionally, regulation in specific areas under its criminal law power: Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457.\n\nIf there is an operative cause of the appellant’s difficulties, it is the fact that although she is getting some treatment under provincial law (see paragraph 59, above), that law does not go far enough to cover all of her medical needs.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-25", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 71–73", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant has attempted to obtain coverage under the Ontario Health Insurance Plan. Ontario refused coverage because, as a person in Canada contrary to Canadian immigration law, the appellant is not a “resident” of Ontario under R.R.O. 1990, Regulation 552, section 1.4, enacted under the Health Insurance Act, R.S.O. 1990, c. H.6. She did not judicially review Ontario’s refusal, nor did she argue that Ontario’s eligibility requirements violate her rights under sections 7 and 15 of the Charter. Nor did she challenge the Public Hospitals Act, supra, and argue that it is constitutionally underinclusive or over restrictive. The record reveals no attempt by the appellant to assert section 7 or 15 of the Charter against provincial legislation that limits her access to health care.\n\nFurther, and most fundamentally, the appellant by her own conduct – not the federal government by its Order in Council – has endangered her life and health. The appellant entered Canada as a visitor. She remained in Canada for many years, illegally. Had she acted legally and obtained legal immigration status in Canada, she would have been entitled to coverage under the Ontario Health Insurance Plan: see section 1.4 of Regulation 552, supra.\n\nIn my view, the appellant has not met her burden of showing that the Order in Council is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter. (b) The principles of fundamental justice", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-26", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 74–77", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Even if the appellant had discharged the burden of showing that the Order in Council is the operative cause of the injury to her rights to life and security of the person, she would still have to establish that the deprivation of her rights to life and security of the person was contrary to the principles of fundamental justice. Here as well, the appellant has fallen short.\n\nThe appellant submits at paragraph 34 of her memorandum of fact and law that “[g]overnments ought never to deny access to healthcare necessary to life as a means of discouraging unwanted or illegal activity, including to those who have entered or remained in a country without legal or documented status.” The appellant submits that “[t]his principle is fundamental to judicial and legislative practice in Canada.”\n\nAt the root of the appellant’s submission are assertions that the principles of fundamental justice under section 7 of the Charter require our governments to provide access to health care to everyone inside our borders, and that access cannot be denied, even to those defying our immigration laws, even if we wish to discourage defiance of our immigration laws. I reject these assertions. They are no part of our law or practice, and they never have been.\n\nThe Charter does not confer a freestanding constitutional right to health care: Chaoulli, supra at paragraph 104 (per McLachlin C.J.C. and Major J.).", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-27", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 78–80", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The results reached in other recent cases confirm that the Charter does not confer a freestanding constitutional right to health care. In these recent cases, courts have denied claims under the Charter to obtain state funding or financial assistance for necessary treatments: Auton (Guardian ad litem of) v. British Columbia (A.G.), 2004 SCC 78, [2004] 3 S.C.R. 657; Ali v. Canada, 2008 FCA 190; Wynberg v. Ontario (2006), 82 O.R. (3d) 561 (C.A.); Eliopoulos v. Ontario (2006), 82 O.R. (3d) 321 (C.A.); Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, (2008), 91 O.R. (3d) 412 (C.A.).\n\nIn words apposite to the case at Bar, Justice Linden of this Court wrote: The appellants are, in essence, seeking to expand the law…so as to create a new human right to a minimum level of health care…. [T]he law in Canada has not extended that far…[A] freestanding right to health care for all of the people of the world who happen to be…in Canada would not likely be contemplated by the Supreme Court. (Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 at paragraph 36, [2007] 3 F.C.R. 169).\n\nThese judicial statements and holdings suggest that the principle proffered by the appellant cannot qualify as a principle of fundamental justice under section 7 of the Charter. It is not a “legal principle” that is “vital or fundamental to our societal notion of criminal justice,” nor is there “a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate”: R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74 at paragraphs 112-113, [2003] 3 S.C.R. 571; R. v. D.B., 2008 SCC 25 at paragraph 46, [2008] 2 S.C.R. 3; Canada (Prime Minister) v. Khadr, 2010 SCC 3 at paragraph 23, [2010] 1 S.C.R. 44.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-28", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 81–82", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant invokes other principles of fundamental justice under section 7. She submits that her exclusion from coverage by the Order in Council is arbitrary. She rightly submits that the Supreme Court has recognized that an arbitrary law – a law that “bears no relation to, or is inconsistent with, the objective that lies behind [it]” – will be contrary to the principles of fundamental justice: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paragraph 103, [2009] 2 S.C.R. 181; Chaoulli, supra at paragraph 104 (per McLachlin C.J.C and Major J.), and Malmo‑Levine, supra at paragraph 135.\n\nHowever, the Order in Council is not arbitrary. It is related to and consistent with the objective that lies behind it. As a general matter, as the analysis in paragraphs 31-46 above shows, the Order in Council is meant to provide temporary, emergency assistance to those who lawfully enter Canada and find themselves under the jurisdiction of the immigration authorities, or for whom the immigration authorities feel responsible. The Order in Council is not meant to provide ongoing medical coverage to all persons who have entered and who remain in Canada, lawfully or unlawfully.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-29", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 83–86", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this regard, I agree with the Federal Court and adopt its words (at paragraph 94): I do not accept the applicant’s submission that her exclusion from health care is not consistent with principles of fundamental justice because it is arbitrary. I see nothing arbitrary in denying financial coverage for health care to persons who have chosen to enter and remain in Canada illegally. To grant such coverage to those persons would make Canada a health-care safe-haven for all who require health care and health care services. There is nothing fundamentally unjust in refusing to create such a situation.\n\nThe appellant also submits that the Order in Council offends the principles of fundamental justice because it is unacceptably vague in the sense that it is unintelligible and impossible to interpret. This is a very high standard to meet and, accordingly, successful claims on this basis are extremely rare: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.\n\nThe appellant falls well short of establishing that high standard. As is evident from paragraphs 31-46 above, the Order in Council can be interpreted and a clear meaning can be gleaned from it.\n\nFinally, the appellant submits that the principles of fundamental justice must also take into account Canada’s obligations under various sources of international human rights law such as the right to life under article 6 of the International Covenant on Civil and Political Rights and rights to health under article 12 of the International Covenant on Economic, Social and Cultural Rights and article 5 of the International Convention on the Elimination of All forms of Racial Discrimination.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-30", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 87–90", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the basis of Khadr, supra at paragraph 23, I accept that, in appropriate cases, courts can be assisted by these sources when defining the precise content of certain principles of fundamental justice under section 7. But in this case we are not at the point of defining the content of a principle of fundamental justice. We are not even at first base. The appellant has not offered a principle that meets the criteria set out in Malmo‑Levine, supra and D.B., supra for admission as a principle of fundamental justice under section 7 of the Charter.\n\nTherefore, I conclude that the appellant’s rights under section 7 are not infringed. (4) Section 15 of the Charter (a) General principles\n\nWhen assessing the merits of a subsection 15(1) claim, we must apply a two-part test: (1) whether the law creates a distinction that is based on an enumerated or analogous ground and (2) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping: Withler v. Canada (Attorney General), 2011 SCC 12 at paragraph 30; R. v. Kapp, 2008 SCC 41 at paragraph 17, [2008] 2 S.C.R. 483.\n\nThe first step tells us that not all distinctions, in and of themselves, are contrary to s. 15(1) of the Charter: Withler, supra at paragraph 31; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9 at paragraph 188, [2009] 1 S.C.R. 222. Subsection 15(1) only covers distinctions made on the basis of the grounds enumerated in subsection 15(1), or grounds analogous to them.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-31", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 91–94", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The second step tells us that the focus under subsection 15(1) is not differential treatment, but rather discrimination. Therefore, in order to succeed, a section 15 claimant must show that the impact of the law is discriminatory: Withler, supra at paragraph 31; Andrews, supra at page 182; Ermineskin Indian Band, supra at paragraph 188; Kapp, supra at paragraph 28.\n\nDiscrimination has been described as follows: …a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. (Andrews, supra, at pages 174-175.) (b) Application of the principles to this case\n\nThe appellant submits that her exclusion from the medical coverage afforded by the Order in Council infringed subsection 15(1) of the Charter because that exclusion was based on an enumerated and analogous ground, and was discriminatory.\n\nThe Federal Court rejected the appellant’s subsection 15(1) submission, primarily on the basis (at paragraphs 79-83) that the appellant had failed to establish that her exclusion from coverage under the Order in Council was based on an enumerated or analogous ground.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-32", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 95–98", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "I find no error in the Federal Court’s rejection of the appellant’s section 15 submissions. In my view, there are four main reasons why the appellant’s section 15 submissions must fail. - I -\n\nIn my view, the appellant has failed to demonstrate that the Order in Council makes a distinction based on any enumerated or analogous ground that is relevant to her situation. On this point, I substantially agree with the Federal Court reasons.\n\nIn this Court, the appellant suggests that the Order in Council creates a “primary distinction” enhanced by a “secondary intersecting ground.”\n\nThe primary distinction is said to be between foreign nationals possessing certain immigration status who are covered under the Order in Council, and other foreign nationals who possess another immigration status who are not covered. As we have seen, however, coverage is potentially available under paragraph (b) to all persons regardless of immigration status. For example, the appellant herself might have been covered by the Order in Council upon her arrival in Canada. Upon entry, she was legally admitted as a visitor. Had she been in desperate need of emergency medical attention at that time and could not otherwise afford it, and if the immigration authorities felt obligated to assist, she would have been covered by the Order in Council.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-33", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 99", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Further, I do not accept that “immigration status” qualifies as an analogous ground under section 15 of the Charter, for many of the reasons set out in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraph 13, recently approved by the Supreme Court in Withler, supra at paragraph 33. ��Immigration status” is not a “[characteristic] that we cannot change.” It is not “immutable or changeable only at unacceptable cost to personal identity.” Finally “immigration status” – in this case, presence in Canada illegally – is a characteristic that the government has a “legitimate interest in expecting [the person] to change.” Indeed, the government has a real, valid and justified interest in expecting those present in Canada to have a legal right to be in Canada. See also Forrest v. Canada (A.G.), 2006 FCA 400 at paragraph 16; Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 55 O.R. (3d) 43 (C.A.) at paragraphs 133-136.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-34", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 100–101", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The “secondary intersecting ground” is said by the appellant to be “a distinction between undocumented migrants with disabilities, who are adversely affected by the policy, and those without disabilities, who are similarly disqualified from coverage, but who do not have serious disabilities or related healthcare needs, therefore experiencing a differential effect.” Intersecting grounds can affect the quality of the alleged discrimination and influence the section 15 analysis: See, e.g., Denise Reaume, “Of Pigeonholes and Principles: A reconsideration of discrimination law”, (2002) 40 Osgoode Hall L.J. 113-144 at paragraphs 33-42 and Douglas Kropp, “Categorical Failure: Canada’s Equality Jurisprudence – Changing Notions of Identity and the Legal Subject,” (1997) 23 Queen’s L.J. 201 at paragraph 8. As the appellant has failed to establish her primary distinction, immigration status, and since there are other obstacles to her section 15 claim, discussed below, I need not consider this further.\n\nTherefore, in my view, the appellant has failed to demonstrate that the Order in Council makes a distinction based on any enumerated or analogous ground that is relevant to her situation.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-35", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 102–104", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Parenthetically, I would note that if the appellant had prevailed on this point, subsection 15(2) of the Charter might become live. If the immigrants, refugees and others who do receive medical care under the Order in Council constitute a disadvantaged group embraced by the enumerated or analogous grounds, and if the Order in Council is aimed at ameliorating or remedying that group’s condition, the Order in Council would be a “law, program or activity” within the meaning of subsection 15(2). In such a case, the Order in Council would not be found to be discriminatory under subsection 15(1): Kapp, supra at paragraph 41; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950. - II -\n\nThe appellant has failed to establish that the Order in Council relies upon, perpetuates or promotes prejudice or stereotyping.\n\nThe appellant has been denied coverage because she did not enter as an applicant for permanent residence, is not a person under immigration jurisdiction, and is not a person for whom the immigration authorities feel responsible. In imposing these eligibility criteria, the Order in Council does not suggest that the appellant and others like her are less capable or less worthy of recognition or value as human beings. The Order in Council does not single out, stigmatize or expose the appellant and others like her to prejudice and stereotyping, nor does it perpetuate any pre-existing prejudice and stereotyping. Indeed, the Order in Council, with its eligibility criteria, denies medical coverage to the vast majority of us, and not just the appellant and others like her. The Order in Council treats the appellant – a non-citizen who has remained in Canada contrary to Canadian immigration law – in the same way as all Canadian citizens, rich or poor, healthy or sick. - III -", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-36", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 105–106", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the facts and the holding of the Supreme Court in Auton, supra are directly on point and confirm that the Order in Council does not infringe section 15 of the Charter. In Auton, the claimants sought an order that British Columbia’s medicare program should be extended to cover a particular treatment for autism. The denial of coverage was said to be discriminatory under section 15 of the Charter. The Supreme Court refused to order British Columbia to extend its medicare program to cover the treatment.\n\nAt paragraph 41, the Supreme Court held that “[i]t is not open to Parliament…to enact a law whose policy objectives and provisions single out a disadvantaged group for inferior treatment.” I note that the Order in Council does not do this. The Supreme Court then added (at paragraph 41): On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect…does not give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner: Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 at para. 61; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83, at para. 55; Hodge, supra, at para. 16.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-37", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 107", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the issue whether the benefit was conferred in a discriminatory manner, the Supreme Court stated (at paragraph 42): Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-38", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 108–111", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The exclusion of the appellant from the coverage provided by the Order in Council does not undercut its overall purpose. On the other hand, the exclusion of the appellant from the coverage provided by the Order in Council is consistent with its purpose. The Order in Council is designed to provide emergency care to legal entrants into Canada who are under immigration jurisdiction or for whom immigration authorities feel responsible. Extending these benefits to all foreign nationals in Canada, even those in Canada illegally, stretches the program well beyond its intended purpose. Excluding persons such as the appellant keeps the program within its purpose. In the words of Auton (at paragraph 43), the appellant’s exclusion from the Order in Council “cannot, without more, be viewed as an adverse distinction based on an enumerated ground”; rather, “it is an anticipated feature” of the Order in Council.\n\nSince the Order in Council does not confer benefits in a discriminatory manner, the general rule expressed by the Supreme Court in paragraph 41 of Auton prevails. The government was “under no obligation to create a particular benefit” in the Order in Council and was left “free to target the social programs it [wished] to fund as a matter of public policy.” - IV -\n\nFinally, I query whether the Order in Council, said by the appellant to be discriminatory, is the operative cause of the disadvantage the appellant is encountering. The observations I made in paragraphs 67-73 also apply to the appellant’s section 15 claim.\n\nTherefore, for all of the foregoing reasons, I conclude that the Order in Council does not infringe the appellant’s rights under section 15 of the Charter. G. Justification and remedy", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-39", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 112–114", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the issue of justification under section 1 of the Charter – whether the Order in Council is a reasonable limit prescribed by law in a free and democratic society – the Federal Court held (at paragraph 94) that if the Order in Council were extended to prove medical coverage to persons illegally in Canada, such as the appellant, Canada would become a “health care safe haven.” The Federal Court mentioned this in the context of the state’s interest that forms part of the analysis of the principles of fundamental justice under section 7.\n\nIn any analysis of justification under section 1 of the Charter in this case, the interests of the state in defending its immigration laws would deserve weight. If the appellant were to prevail in this case and receive medical coverage under the Order in Council without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.\n\nIn this case, it is not necessary to comment on justification under section 1 any further. Nor is it necessary to comment on what constitutional remedy might be awarded under subsection 24(1) of the Charter. The appellant’s constitutional challenge fails for want of proof of rights breach. The Order in Council does not infringe sections 7 and 15 of the Charter. H. Concluding comments", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-40", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 115–117", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Just before the release of these reasons, this Court released its judgment in Toussaint v. Canada (Citizenship and Immigration), 2011 FCA 146. It held that the Minister must consider the appellant’s request for a waiver of fees for her application for permanent residence in Canada.\n\nOn the evidence in this record, and given the reasons set out in paragraphs 35 and 45, above, a decision by the Minister to waive the fees and accept the appellant’s application will not entitle her to medical coverage under the Order in Council. However, depending upon the terms of legislation in Ontario, she may be entitled to health coverage or assistance from Ontario, now or at some point in the future. That will be for others to decide. I. Proposed disposition\n\nI would dismiss the appeal. In the circumstances, the Crown has asked that costs not be awarded against the appellant. Accordingly, I would not award costs. \"David Stratas\" J.A. “I agree Pierre Blais C.J.” “I agree M. Nadon J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-31447-1", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 1–4", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "On February 18, 1999, Mizanur Rahaman, a 26 year-old citizen of Bangladesh, was refused refugee status by the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board also concluded that the claim had no credible basis within the meaning of subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2.\n\nThe principal effects of a \"no credible basis\" finding are that the unsuccessful claimant for refugee status has no right to apply to remain as a member of the Post-Determination Refugee Claimants in Canada (\"PDRCC\") class and is liable to be removed from Canada seven days after the removal order is effective.\n\nThis is an appeal by Mr. Rahaman from a decision dated November 2, 2001 dismissing an application for judicial review of the Board's rejection of his refugee claim and of the \"no credible basis\" finding. The principal issue to be decided is contained in the question that the Application Judge, Teitelbaum J., certified under subsection 83(1): Is a simple finding that a refugee claimant is not a credible witness sufficient to trigger the application of subsection 69.1 (9.1) of the Immigration Act ? Counsel for Mr. Rahaman has limited the appeal to the Board's \"no credible basis\" finding; the dismissal of the application to set aside the Board's rejection of the refugee claim itself is not being appealed. B. THE BOARD'S DECISION\n\nIn his submissions to the Board, Mr. Rahaman claimed that, as a result of his membership of and activities in the youth wing (\"JJD\") of the Bangladesh National Party (\"BNP\"), he had a well-founded fear of persecution in Bangladesh on account of his political opinions.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-2", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 5", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "More particularly, he alleged that, when participating in protest marches or election campaigns between 1990 and 1996, he had been beaten on several occasions by supporters of the Awami League and of the Jatiya Party, political rivals of the BNP. Awami League supporters, he said, were also responsible for bombing the office of the JJD in the appellant's electoral district and for vandalising a kiosk from which he was selling watches. Further, Mr. Rahaman stated that the police had provided little or nothing by way of protection against these attacks on him and had demanded bribes before being prepared to take any action. Having learned that his name was on a police list of suspected terrorists, and fearing for his life, Mr. Rahaman fled to Canada to claim asylum as a refugee.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-3", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 6–7", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Board was concerned by inconsistencies and implausibilities in Mr. Rahaman's testimony which he could not explain satisfactorily. For instance, the Board found it odd that Mr. Rahaman alleged that he was attacked and denied police protection at a time when the party to which he was affiliated, the BNP, was in power. Further, he could provide the Board with no adequate explanation of how he came to know that he was on a list of suspected terrorists or why, in a letter submitted in evidence to the Board, the local JJD branch of which Mr. Rahaman was an executive member made no mention of problems that its members had had with the police. Moreover, when faced by the Board with documentary evidence of violent clashes between JJD supporters and their rivals, the appellant retracted his testimony denying that such clashes had occurred. The Board also found that the credibility of Mr. Rahaman's evidence was further undermined by the fact that he was apparently willing to remain in Bangladesh during the years of his alleged persecution, when the party for which he worked was in power, but decided to leave when it was defeated, on the ground that his opponents would then seek revenge against him.\n\nHaving considered all the evidence and the submissions, the Board concluded that the claimant was not a Convention refugee. It summarized its conclusion as follows: The panel found a problem with the claimant's general credibility and particularly with his level of implication as he tried to demonstrate in his PIF [scil. Personal Information Form] and testimony. Without further reasons the Board also found that Mr. Rahaman's refugee claim had no credible basis within the meaning of subsection 69.1(9.1) of the Immigration Act. C. THE TRIAL DIVISION'S DECISION", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-4", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 8–9", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "On Mr. Rahaman's application for judicial review to have the Board's decision set aside, submissions were made on his behalf in an attempt to undermine the Board's finding that his evidence was not credible. However, after carefully considering the Board's findings in light of the oral and documentary evidence before it, and of the submissions made to him, Teitelbaum J. concluded that it was not unreasonable for the Board to find that the applicant's claim was not credible. He specifically noted the deference afforded by reviewing courts to credibility findings made by the triers of fact, and that documentary evidence before the Board contradicted in significant respects Mr. Rahaman's testimony.\n\nTeitelbaum J. also found that the Board had based its \"no credible basis\" finding primarily on Mr. Rahaman's lack of credibility. In addition, it had relied on the absence of documentary evidence to support his claim to be at risk of persecution and on the fact that some of the documentary evidence contradicted his account of the situation in Bangladesh at the relevant time. D. LEGISLATIVE FRAMEWORK", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-5", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 10", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "The following provisions of the Immigration Act are relevant to this appeal. Immigration Act, R.S.C. 1985, c. I-2 49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed ... (c) subject to paragraphs (d) and (f), in any case where a person has been determined by the Refugee Division not to be a Convention refugee or a person's appeal from the order has been dismissed by the Appeal Division, (i) where the person against whom the order was made files an application for leave to commence a judicial review proceeding under the Federal Court Act or signifies in writing to an immigration officer an intention to file such an application, until the application for leave has been heard and disposed of or the time normally limited for filing an application for leave has elapsed and, where leave is granted, until the judicial review proceeding has been heard and disposed of, ... (f) in any case where a person has been determined pursuant to subsection 69.1(9.1) not to have a credible basis for the claim to be a Convention refugee, until seven days have elapsed from the time the order became effective, unless the person agrees that the removal order may be executed before the expiration of that seven day period 69.1(9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and 49. (1) Sauf dans les cas mentionnés au paragraphe (1.1), il est sursis à l'exécution d'une mesure de renvoi_: ...", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-6", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 10", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "c) sous réserve des alinéas d) et f), dans le cas d'une personne qui s'est vu refuser le statut de réfugié au sens de la Convention par la section du statut ou don't l'appel a été rejeté par la section d'appel_: (i) si l'intéressé présente une demande d'autorisation relative à la présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ou notifie par écrit à un agent d'immigration son intention de le faire, jusqu'au prononcé du jugement sur la demande d'autorisation ou la demande de contrôle judiciaire, ou l'expiration du délai normal de demande d'autorisation, selon le cas, ... f) dans le cas où la section du statut a décidé conformément au paragraphe 69.1(9.1) que la revendication n'a pas un minimum de fondement, pendant sept jours à compter du moment où la mesure est devenue exécutoire, à moins que l'intéressé ne consente à l'exécution avant l'expiration de cette période. 69.1(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim. revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-7", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 11", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "The relevant provisions of the Regulations respecting the PDRCC class follow. Immigration Regulations, 1978, SOR/78-172 2.(1) \"member of the post- determination refugee claimants in Canada class\" means an immigrant in Canada (a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, other than an immigrant ... (iii) whom the Refugee Division has determined does not have a credible basis for the claim, pursuant to subsection 69.1(9.1) of the Act, ... (c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant; 2.(1) « demandeur non reconnu du statut de réfugié au Canada » Immigrant au Canada : a) à l'égard duquel la section du statut a décidé, le 1er février 1993 ou après cette date, de ne pas reconnaître le statut de réfugié au sens de la Convention, à l'exclusion d'un immigrant, selon le cas : ... (iii) à l'égard duquel la section du statut a déterminé, en vertu du paragraphe 69.1(9.1) de la Loi, que sa revendication n'a pas un minimum de fondement, ...", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-8", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 11–13", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "c) don't le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant : (i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats, (ii) des sanctions excessives peuvent être exercées contre lui, (iii) un traitement inhumain peut lui être infligé.\n\nSubsection 11.4(1) of the Regulations also provides that, subject to certain limitations, persons found to be members of the PDRCC class, and their dependants, are to be granted permanent residence status in Canada. E. ANALYSIS\n\nCounsel for the appellant has argued that in the past this Court has interpreted too broadly the \"no credible basis\" provision in subsection 69.1(9.1). She has invited us to reconsider settled case law and to adopt a narrower interpretation which, she contends, would be more consistent with the scheme of the Act and would bring Canada into line with international norms. More precisely, it is submitted that a person's refugee claim is not supported by \"no credible or trustworthy evidence\" simply because the Board finds that the claimant is not a credible witness and hence concludes that there is no evidence linking the claimant to the alleged persecution on which the claim is based.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-9", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 14–15", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "The original statutory function of the \"no credible basis\" test was to determine whether a refugee claim could be eliminated at the preliminary stage of a two-stage determination process: subsection 46.01(6), added by Immigration Act, R.S.C. 1985 (4th Supp.), c. 28, s. 14. This process was designed to enable the Board to deal expeditiously with the large numbers of unfounded refugee claims that were anticipated.\n\nHowever, since \"no credible basis\" established a threshold so low that most claimants were able to cross it, the process proved cumbersome, and did not assist the Board to handle its case load in an efficient and expeditious manner. Accordingly, it was abandoned in February 1993 when subsection 46.01(6), was repealed by R.S.C. 1992, c. 49. As a result, inland refugee claimants no longer had to prove that their claims had a credible basis before gaining access to a full determination by the Board. The amendments that came into effect in 1993 also added the present subsection 69.1(9.1), thereby conferring on the \"no credible basis\" test a new function in the statutory scheme, namely to restrict the post-determination rights of unsuccessful claimants whose claims were found to be supported by no credible evidence.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-10", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 16", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) contains the most authoritative exposition of the \"no credible basis\" test when it performed the function of screening out claims at the preliminary stage of the determination process. Writing for the Court, MacGuigan J.A. concluded (at page 244) that Parliament had intended subsection 46.01(6) to screen out more than clearly \"bogus claims\": The concept of \"credible evidence\" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to \"country reports\" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-11", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 17–18", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsequently, the phrase \"no credible basis\" as it appears in subsection 69.1(9.1) has been interpreted in accordance with Sheikh, supra. Thus, in Mathiyabaranam v. Canada (Minister of Citizenship and Immigration) (1997), 41 Imm. L.R. (2d) 197, at paragraph 12 (F.C.A.), Linden J.A. cited Sheikh, supra, for the proposition that, \"while credible basis and credibility are not identical, they are clearly connected\". At the very least, Mathiyabaranam, supra, is an implicit endorsement of the applicability of Sheikh, supra, in the context of subsection 69.1(9.1).\n\nJudges of the Trial Division have expressly held that Sheikh, supra, is the applicable approach to the words \"no credible basis\" in subsection 69.1(9.1): see, for example, Hernandez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 607 (T.D.); Nizeyimana v. Canada (Minister of Citizenship and Immigration), 2001 FCT 259; Geng v. Canada (Minister of Citizenship and Immigration), 2001 FCT 275.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-12", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 19–20", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Some Judges have noted, however, that because of the change in statutory context Sheikh, supra, should not be read broadly so as to relieve the Board of the duty to base a \"no credible basis\" finding on the totality of the evidence before it. This caution was well articulated in Foyet v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 181, on which counsel for the appellant placed considerable weight. In this case (supra, at paragraph 19), Denault J. summarised his understanding of the law as follows: In my view, what Sheikh, tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding. In my view, this is an accurate statement of the law as it has been understood to date, subject to one qualification: in order to preclude a \"no credible basis\" finding, the \"independent and credible documentary evidence\" to which Denault J. refers must have been capable of supporting a positive determination of the refugee claim.\n\nThe case law to date would therefore seem to be solidly against the position taken on behalf of Mr. Rahaman in this appeal, namely that the Board may not make a \"no credible basis\" finding if a claim is based on a Convention ground and there is evidence that persecution of the kind alleged has in fact occurred in the country in question.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-13", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 21–22", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nonetheless, counsel submits that we should reconsider the existing jurisprudence on subsection 69.1(9.1) because it is not consistent with Parliament's intention in enacting it. Instead, she argues, a claim should only be found to lack a credible basis if it would be characterised as \"manifestly unfounded\", the test used in international instruments for identifying both claims that may be rejected through a more summary determination procedure than that normally applicable to refugee claims and claimants whose post-determination rights may be truncated in order to expedite their removal. Counsel puts her argument in two ways. (a) The statutory coherence argument\n\nCounsel argues that, to apply the interpretation of the \"no credible basis\" test in Sheikh, supra, to subsection 69.1(9.1) subverts the intention of Parliament by converting into the normal what was intended to be exceptional. The argument is that the statutory scheme established by the Immigration Act contemplates that, in the normal course, an unsuccessful refugee claimant will be entitled to apply to be recognized as a member of the PDRCC class, and to remain in Canada until the final determination of that application and the disposition of any legal proceedings arising either from that application or from the rejection of the refugee claim. A finding of \"no credible basis\", which deprives an unsuccessful claimant of these rights, is intended only for the unusual case where the claim is so devoid of merit as to constitute an abuse of the refugee determination system.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-14", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 23–24", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, it is argued, most refugee claims fail because the Board does not believe the claimant's testimony. Therefore, if a \"no credible basis\" finding can be made when the Board does not find the claimant credible, most unsuccessful refugee claimants will not have the right either to make a PDRCC claim, or to remain in Canada pending the final disposition of an application for judicial review of the Board's dismissal of their refugee claim. The result is that most unsuccessful claimants will not have the benefit of the rights that Parliament intended. Despite the absence of evidence in the record before us on the percentage of refugee claims that are rejected because the claimant is not found to be credible, I am prepared to assume for the purpose of this appeal that they constitute a significant percentage of all unsuccessful refugee claims.\n\nI do not, of course, take issue with that regularly approved principle of statutory interpretation formulated by E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths Ltd., 1983), at page 87, that \"... the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.\" Nonetheless, in my opinion, counsel's argument cannot succeed.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-15", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 25–27", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, a word or phrase is presumed to have the same meaning when used more than once in the same statute: R. Sullivan ed., Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths Ltd., 1994), at pages 163-64. This presumption is particularly persuasive when, as here, the phrase is part of a longer text, and both phrase and text appear in different provisions of the statute. In my view, the presumption is not significantly weakened by the fact that the phrase \"no credible basis\" did not appear in provisions of the Immigration Act that were in force at the same time. As I have already noted, the former subsection 46.01(6) was repealed at the same time that subsection 69.1(9.1) was added to the Act.\n\nSecond, I cannot ignore the fact that in Mathiyabaranam, supra, this Court treated the interpretation in Sheikh, supra, of \"no credible basis\" in subsection 46.01(6) as equally applicable to the same words in subsection 69.1(9.1), a view consistently taken in the Trial Division. Only in exceptional circumstances should a well established interpretation of a statutory provision be abandoned.\n\nThird, I do not accept counsel's submission that Sheikh, supra, equates \"no credible basis\" with a finding that the claimant's testimony is not credible. In particular, it is expressly stated in that decision that the Board is to have regard to all the evidence before it: the claimant's oral submissions and any documentary evidence or other oral testimony. See, for example, Nizeyimana, supra; Barua v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1744 (T.D.); Tingombay v. Canada (Minister of Citizenship and Immigration), 2001 FCT 752.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-16", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 28–30", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, the wording of subsection 69.1(9.1) provides that a \"no credible basis\" finding may only be made if there was no credible or trustworthy evidence on which the Board member could have upheld the claim. In other words, the Board member may not make a \"no credible basis\" finding if there is credible or trustworthy evidence before it that is capable of enabling the Board to uphold the claim, even if, taking the evidence as a whole, the Board decides that the claim is not established.\n\nHowever, as MacGuigan J.A. acknowledged in Sheikh, supra, in fact the claimant's oral testimony will often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim. Because they are not claimant-specific, country reports alone are normally not a sufficient basis on which the Board can uphold a claim.\n\nOn the other hand, the existence of some credible or trustworthy evidence will not preclude a \"no credible basis\" finding if that evidence is insufficient in law to sustain a positive determination of the claim. Indeed, in the case at bar, Teitelbaum J. upheld the \"no credible basis\" finding, even though he concluded that, contrary to the Board's finding, the claimant's testimony concerning the intermittent availability of police protection was credible in light of the documentary evidence. However, the claimant's evidence on this issue was not central to the Board's rejection of his claim.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-17", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 31–32", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Fourth, while the adverse consequences of a \"no credible basis\" finding under subsection 69.1(9.1) are undoubtedly significant for the person concerned, they need to be considered in context. Thus, although those against whom a \"no credible basis\" finding is made do not have a statutory right to an automatic stay of their removal while they exhaust their legal and administrative recourse, if they seek leave to apply for judicial review of the Board's dismissal of their refugee claim, they may ask the Court for a stay pending the Court's disposition of their application.\n\nFurther, although not permitted to apply for exemption from removal as a member of the PDRCC class, an unsuccessful refugee claimant whose claim has been found to have no credible basis may apply to remain in Canada on humanitarian and compassionate grounds in the exercise of the Minister's discretion under subsection 114(2). The existence of an objectively identifiable risk facing the applicant, if returned, is a recognized ground for a positive exercise of discretion: Immigration Canada, Immigration Manual: Inland Processing. looseleaf (Immigration Information Centre; 1991), chapter 5, section 8.8. However, a removal will generally not be stayed pending the completion of a subsection 114(2) application, although a person whose application is based on a risk of persecution in his or her country of origin will normally not be removed if the claimant is found likely to be at serious risk.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-18", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 33–34", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "In other words, while a \"no credible basis\" finding undoubtedly exposes the person concerned to a relatively expeditious removal, removal in fact may be delayed. Legal and administrative safeguards against the removal of those likely to face persecution on their refoulement do exist, even though they are not as favourable as those available to unsuccessful refugee claimants in respect of whom each member of the Board has not made a \"no credible basis\" finding under subsection 69.1(9.1). (b) The international law argument\n\nCounsel for Mr. Rahaman argues that compliance with international norms requires that unsuccessful refugee claimants not be subject to refoulement pending the disposition of legal proceedings brought to review the rejection of their refugee claims, unless their claims are manifestly unfounded. For the Court to interpret subsection 69.1(9.1) to include claims that cannot be said to be manifestly unfounded would put Canada out of line with international legal norms. Only when faced with completely unequivocal statutory language should the Court conclude that an Act of Parliament derogates from international norms respecting the protection of human rights. Sheikh, supra, is silent on this point, perhaps because the judicial recognition of the importance of international norms in the interpretation of statutory powers, and the review of their exercise, is a relatively recent phenomenon in Canada. (i) statutory interpretation: the international context", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-19", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 35–36", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nowadays, there is no doubt that, even when not incorporated by Act of Parliament into Canadian law, international norms are part of the context within which domestic statutes are to be interpreted: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 70. Similarly, in Suresh v. Canada, 2002 SCC 1, at paragraph 59, when referring to the Immigration Act the Supreme Court of Canada stated: \"A complete understanding of the Act ... requires consideration of the international perspective.\" It was also said in Suresh, supra, at paragraph 60, that the reason for examining the international dimension is not to determine if Canada is in breach of its international legal obligations as such, but to use prevailing international norms to inform the interpretation of a provision of domestic law, in that case section 7 of the Canadian Charter of Rights and Freedoms.\n\nOf course, the weight to be afforded to international norms that have not been incorporated by statute into Canadian law will depend on all the circumstances of the case, including the legal authoritativeness of their legal source, their specificity and, in the case of customary international law, the uniformity of state practice. Moreover, although subject to the restraints imposed by the Constitution Acts 1867 to 1982, including the Charter, Parliament is the ultimate source of law in our system of law and government. Hence, effect cannot be given to unincorporated international norms that are inconsistent with the clear provisions of an Act of Parliament. Were it otherwise, the principle that treaties and other international norms only become part of the domestic law of Canada if enacted by Parliament would be undermined.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-20", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 37–39", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "The question before us is whether the interpretation of subsection 69.1(9.1) in Sheikh, supra, authorizes the removal of unsuccessful refugee claimants contrary to international norms. This will occur if a claim supported by \"no credible or trustworthy evidence\" is not also \"manifestly unfounded\" as that phrase is understood in the international community. (ii) a right to remain pending an appeal?\n\nThe first step to answering the above question is to ask if international norms require states to ensure that an unsuccessful refugee claimant is not returned to the country of alleged persecution pending the final disposition of a legal challenge to the dismissal of the refugee claim. This question is not expressly addressed in the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (the Geneva Convention), or in the 1967 Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, which are the most authoritative legal texts that define the status of refugee and establish the key principles of protection, including non-refoulement.\n\nHowever, in Article 35 of the Geneva Convention the signatory states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner's Programme on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-21", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 40–41", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Executive Committee has recommended that unsuccessful refugee claimants be given a reasonable opportunity to appeal from a refusal to recognize their claim, and be permitted to remain in the country of refuge pending appeal, before they are returned to their home country where they may be subject to identifiable risk: see UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: 1998), UN GA, 32 Sess., UN. Doc A/32/12/Add.1 (1977). Similarly, in 1995 the Council of the European Union adopted the Resolution on Minimum Guarantees for Asylum Procedures (\"EU Council Resolution\"), which provides in paragraph 17 that as a general rule asylum seekers should be permitted to remain in the territory of the Member State where protection is being sought until the refusal of the claim has been taken on appeal. See also James C. Hathaway and Anne K. Cusick, \"Refugee Rights Are Not Negotiable\" (2000), Georgetown Imm. L.J. 481, at page 496.\n\nIn my opinion, this material indicates the existence of an international norm that signatory states to the Geneva Convention should normally permit refugee claimants to remain in their territory until they have exhausted any right of appeal or review. This is what paragraph 49(1)(c) of the Immigration Act provides.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-22", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 42–43", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, it is also recognized in international instruments that states may derogate from the normal rule by providing more limited review and appeal rights to unsuccessful claimants whose claims have been held to be \"manifestly unfounded\". Thus, the Executive Committee has indicated a consensus on the problem created by the increase in applicants who \"clearly have no valid claim\" or whose claims are \"manifestly unfounded\", and that states must create separate national procedures to address this problem: Conclusion No. 28 (XXXIII) 1982, UN UNHCR, 32d Sess., UN Doc. EC/SCP/22/Rev.1 (1982), Conclusion No.30 (XXXIV) 1983, UN Doc., Report on the 34th Session of The Executive Committee of the High Commissioner's Programme, UN GAOR, 34th Sess., A/AC.96/631 (1993), Conclusion No. 87 (L) 1999, at paragraph (k).\n\nConsequently, the Executive Committee has recommended (Conclusion No. 30, supra, at paragraph (e)(iii)) that, while refugee claimants must be given an opportunity to have a negative decision reviewed before their forcible removal, \"this review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.\" See also UN Global Consultations on International Protection, 2d Meeting, UN Doc. EC/GC/01/12 (2001) (\"Global Consultations\"), at paragraph 32. The EU Council Resolution provides that a person whose claim is held to be manifestly unfounded should at least be entitled to request the body reviewing the refusal of the claim to stay the claimant's removal until the review is complete.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-23", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 44–45", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my opinion, the restricted post-determination rights afforded by the Immigration Act to those whose claims are found to have no credible basis are not inconsistent with international norms as evidenced by the above instruments. \"No credible basis\" claimants may apply for judicial review and request the Court to grant a stay pending the disposition of the application, and those found to be at serious risk in their country of origin will not be removed. A problem arises, however, if a claim can fall within this category, but is not \"manifestly unfounded\" as that term is commonly understood in the international community. As I have already noted, a person whose claim is not \"manifestly unfounded\" should be permitted to remain pending the disposition of the appeal or review. (iii) \"manifestly unfounded or clearly abusive\"\n\nThere is no doubt that some international instruments appear to give a very restricted meaning to the term \"manifestly unfounded\". For example, paragraph (d) of Conclusion 30, supra, defines claims that are \"manifestly unfounded\" as \"those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 ... Convention ... nor to any other criteria justifying the granting of asylum\".", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-24", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 46–47", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "More recent pronouncements, however, are less categorical, no doubt in response to a growing number of genuine and bogus refugee claims. For example, Article 28 of the EU Council Resolution, supra, provides a longer list of the grounds on which a Member State may dismiss a refuge claim as manifestly unfounded, although the absence of credible evidence supporting the claim is not among them. However, the inclusion of two grounds on which a claim must not be considered as manifestly unfounded suggests that the longer list of what makes a claim manifestly unfounded is not intended to be exhaustive.\n\nIn addition, the recent report arising from the Global Consultations process of the United Nations canvasses the various approaches adopted by states to the definition of \"manifestly unfounded\": supra, at paragraphs 28-31. In particular, it says that some states have \"factored credibility, or the absence thereof, into the original assessment of manifest unfoundedness\", while others have taken the position that a claim may be manifestly unfounded if made with the intention of misleading the national authorities. Evidence that there is as yet no international consensus on the scope of the term, \"manifestly unfounded\" is provided by paragraph 26 of this document, which states: There is a need, in UNHCR's assessment, to promote a more common understanding of the types of claim which would merit the presumption that they are manifestly unfounded or clearly abusive, and which could be examined under the accelerated procedure.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-25", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 48–50", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Further evidence of state practices that widen the categories of manifestly unfounded claims to include those that are supported by no credible evidence is supplied by G. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Oxford: Clarendon Press, 1996), at pages 344-47.\n\nOn the basis of the material considered above it is not possible in my opinion to conclude that a comprehensive international norm has emerged defining a manifestly unfounded or abusive application that would exclude a claim that has \"no credible basis\", as interpreted in Sheikh, supra. I would also note in this regard that under Canadian law all eligible inland claimants have a right to a full adjudicative hearing before an independent administrative tribunal, and that a finding of \"no credible basis\" is only made on the basis of this process. F. CONCLUSIONS\n\nIn view of my conclusion on the indeterminate state of international law on whether any claim that has no credible basis within the meaning of subsection 69.1(9.1) is also manifestly unfounded, it is unnecessary to consider whether that provision should be interpreted to include only claims that are manifestly unfounded or clearly abusive. I would only note that, although \"manifestly unfounded or clearly abusive\" is the phrase used in international instruments, Parliament has retained the term \"no credible basis\" in the Act.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-26", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 51–52", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, while I have not been able to accept the position advanced by counsel for Mr. Rahaman in this appeal, I would agree that the Board should not routinely state that a claim has \"no credible basis\" whenever it concludes that the claimant is not a credible witness. As I have attempted to demonstrate, subsection 69.1(9.1) requires the Board to examine all the evidence and to conclude that the claim has no credible basis only when there is no trustworthy or credible evidence that could support a recognition of the claim.\n\nFor these reasons, I agree with Teitelbaum J. that, having considered the oral and documentary evidence before it, the Board committed no reviewable error in stating that Mr. Rahaman's claim lacked a credible basis. Accordingly, I would dismiss the appeal and answer the certified question as follows: Whether a finding that a refugee claimant is not a credible witness triggers the application of subsection 69.1(9.1) depends on an assessment of all the evidence in the case, both oral and documentary. In the absence of any credible or trustworthy evidence on which each Board member could have determined that the claimant was a Convention refugee, a finding that the claimant was not a credible witness will justify the conclusion that the claim lacks any credible basis.", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fca-31447-27", + "doc_type": "caselaw", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 53", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "part": "Federal Court of Appeal", + "division": "", + "text": "Counsel for the Minister requested costs. However, rule 22 of the Federal Court Immigration Rules, 1993, SOR/93-235, provides that costs are not awarded in respect of an application or an appeal under the Rules, \"unless the Court, for special reasons, so orders.\" In my opinion no special reasons exist here. Given the limited authority from this Court on the interpretation of subsection 69.1(9.1), and the newly emerging importance of international human rights norms for the interpretation of domestic legislation, I cannot regard this appeal as in any way improper or inappropriately brought, a view obviously shared by the Application Judge when he certified a question for appeal. \"John M. Evans\" J.A. \"I agree A.J. Stone J.A.\" \"I agree B. Malone J.A.\"", + "current_to": "2002-03-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + }, + { + "id": "fc-64594-1", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 1–3", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "This is an application for judicial review of a decision of an officer of Citizenship and Immigration Canada (the Officer) denying the Applicant’s application for a temporary resident visa and determining that the Applicant engaged in misrepresentation with the result, pursuant to subsection 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA), that he is inadmissible to Canada for a period of two years. The application is brought pursuant to subsection 72(1) of the IRPA. Background\n\nThe Applicant is a citizen of Mauritius. He was granted a study permit for the period December 24, 2006 to January 31, 2008. This was renewed for the period January 4, 2008 to September 27, 2008 and he was issued a work permit on April 4, 2008, also valid to September 27, 2008 which permitted him to work up to 20 hours a week during regular academic sessions and full time during scheduled breaks. The work permit is referred to by Citizenship and Immigration Canada (CIC) as an off-campus work permit (OCWP). His study permit was again renewed for the period September 15, 2008 to April 30, 2009 and an OCWP on the same terms was issued on October 15, 2008 also valid to April 30, 2009. A final study permit and OCWP were issued on April 24, 2009 valid to May 16, 2012.\n\nFrom January 2010 to December 2010, the Applicant attended the Northern Alberta Institute of Technology (NAIT) and successfully completed a full-time, one year Water and Waste Technician Program. While attending the NAIT, he held a part time practicum position at IVIS Inc., from May 2010 to September 2010, as permitted by the OCWP.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-2", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 4–7", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "Upon graduation, the Applicant commenced full time employment with IVIS Inc., as of December 20, 2010 and continuing to September 2012. He was no longer a student and did not obtain an alternate work permit until June 1, 2012.\n\nOn November 3, 2011, the Applicant was refused a temporary resident visa by the CIC office in Los Angeles.\n\nThe Applicant applied for, and on June 1, 2012 was issued, a work permit valid to June 1, 2014, permitting the Applicant to work at IVIS Inc.\n\nThe Applicant again applied for a temporary residency visa on October 11, 2012 at the CIC Seattle office. In that application, in reply to the question “Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country.” He responded “no” and did not disclose the November 3, 2011 temporary residency visa refusal in Los Angeles.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-3", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 8–9", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "On October 31, 2012, the Officer sent the Applicant a “fairness letter” pointing out that the Applicant had failed to disclose the prior temporary residency visa refusal in Los Angeles. This stated, in part: It is difficult to escape the conclusion that your failure to disclose the previous refused TRV application in your application to this office was a deliberate attempt to conceal both the refusals themselves and the reasons for them. Immigration records in Canada together with the information and evidence submitted in your application indicate that you engaged in unauthorized full-time employment whilst you were the holder of an off-campus work permit. The record shows that you were requested to surrender the document but failed to comply. This was the primary reason for the refusal of your application by the Los Angeles office. Your failure to disclose the refusal of your application in that office, therefore, could have induced an error in the administration of the Act and regulations.\n\nThe letter also referred to subsection 40(1)(a) of the IRPA which states that a foreign national is inadmissible due to misrepresentation as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. The Applicant was given an opportunity to provide an explanation or documentary evidence to address this issue.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-4", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 10–12", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In response, the Applicant submitted a Statutory Declaration in which he stated that a clerical error had been made by the immigration consultant who helped him with his application with the result that he had answered “no” to the question, “Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country?” when the correct answer was “yes”. He stated that this was not an intentional mistake, and, that he had never engaged in any unauthorized full-time employment while he was the holder of an OCWP and had never received any request from any immigration office to surrender any document. He attached all of the study and work permits he had received.\n\nThe Applicant also submitted a statutory declaration by Mr. Randy McDonald who identified himself as an administrative assistant at Canwrx Group Ltd., the immigration consultant that had acted as the Applicant’s representative in making the October 2012 temporary residency visa application. Mr. McDonald confirmed that he had made the clerical error described above.\n\nBy letter dated January 8, 2013, the Officer advised the Applicant that he did not meet the requirements for a temporary resident visa. Decision Under Review", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-5", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 13", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In the January 8, 2013 letter, the Officer stated that he was not satisfied that the Applicant met the requirements of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-22 (the IRPA Regulations) and that the Officer was, therefore, refusing his application. [13] The basis for the refusal was that the Officer was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident as he had contravened the conditions of admission on a previous stay in Canada and as he had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA. Specifically, the Applicant had denied previously being refused a visa when, in fact, he had been refused by the CIC Los Angeles office. Further, that the Applicant had denied engaging in unauthorized employment whereas the record and his own application indicated otherwise. The letter also stated that the Applicant had no authority to work after he completed his studies at the NAIT. As it had been determined that the Applicant had engaged in misrepresentation pursuant to subsection 40(1)(a) of the IPRA, the Applicant was inadmissible to Canada for a period of two years. Applicable Law and Policy", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-6", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 14", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The relevant provisions of the IRPA are as follows: PART 1 IMMIGRATION TO CANADA DIVISION 1 REQUIREMENTS AND SELECTION Requirements 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. […] Obligation — answer Truthfully 16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. […] Misrepresentation 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; […] (2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and […] PARTIE 1 IMMIGRATION AU CANADA SECTION 1 FORMALITÉS ET SÉLECTION Formalités 11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi. […] Obligation du Demandeur 16.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-7", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 14", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "(1) L’auteur d’une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, […] Fausses déclarations 40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi; […] (2) Les dispositions suivantes s’appliquent au paragraphe (1): (a) l’interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la mesure de renvoi; […]", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-8", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 15", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The relevant provisions of the IRPA Regulations state: PART 9 TEMPORARY RESIDENTS DIVISION 1 TEMPORARY RESIDENT VISA 179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national (a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; (b) will leave Canada by the end of the period authorized for their stay under Division 2; (c) holds a passport or other document that they may use to enter the country that issued it or another country; (d) meets the requirements applicable to that class; (e) is not inadmissible; and (f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act. PARTIE 9 RÉSIDENTS TEMPORAIRES SECTION 1 VISA DE RÉSIDENT TEMPORAIRE 179. L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis: a) l’étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; c) il est titulaire d’un passeport ou autre document qui lui permet d’entrer dans le pays qui l’a délivré ou dans un autre pays; d) il se conforme aux exigences applicables à cette catégorie; e) il n’est pas interdit de territoire; f) s’il est tenu de se soumettre à une visite médicale en application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et (3).", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-9", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 16–17", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "CIC has also produced a policy document entitled ENF 2 – Evaluating Inadmissibility (ENF 2) which is intended to assist visa offices in assessing misrepresentation. While such guidelines or operational manuals do not have the force of law, they have been recognized by this Court as valuable guidelines to immigration officers in carrying out their duties (Canada (Minister of Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438 at para 46; Baker v Canada (Minister of Citizenship and Immigration), [1991] 2 SCR 817 [Baker]; Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at para 85).\n\nENF 2 states that the purpose of the misrepresentation provisions is to ensure that applicants provide complete, honest and truthful information in every manner when applying for entry into Canada (section 9.1) and that persons who misrepresent or withhold material facts, either directly or indirectly, relating to a relevant matter that induces or could induce an error in the administration of the Act are inadmissible to Canada pursuant to subsection 40(1)(a) of the IRPA. Misrepresentation and withholding are defined as direct and indirect misrepresentation (section 9.2). The document also describes the principles applicable to relevancy as well as materiality and provides examples of these (section 9.4). It also addresses errors in the administration of the IRPA (section 9.5). Issues", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-10", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 18–20", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "I would frame the issue in this matter as being whether it was reasonable for the Officer to conclude that there was a material misrepresentation. Standard of Review [18] The majority of the Supreme Court has held that “[a]n exhaustive analysis is not required in every case to determine the proper standard of review.” Courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particular category of question (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paras 57 and 62 [Dunsmuir]; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 53 [Khosa]).\n\nThis Court has previously held that the standard of review to be applied when determining whether an immigration officer made a reviewable error in concluding that an applicant made a material misrepresentation pursuant to subsection 40(1)(a) of the IRPA is reasonableness. Misrepresentation is an issue of mixed fact and law and is therefore reviewable on the reasonableness standard (Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 12 [Oloumi]; Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788 at para 14).\n\nWhen reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility of the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir, above, at para 47; Khosa, above at para 59). Positions of the Parties The Applicant", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-11", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 21–24", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Applicant’s position is that there was no misrepresentation but, even if there was, it was not material.\n\nThe Applicant submits that he brought the error to the attention of the immigration consultant who was assisting him and that he believed that the error would be corrected before the consultant submitted the application. He was not dishonest and did not knowingly misrepresent his immigration history. He reasonably and honestly believed at the time the application was made that he was not withholding material information. In this regard he relies on Medel v Canada, [1990] FCJ No 318 (CA)(QL) [Medel] and distinguishes Oloumi, above, and Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315 [Haque] on their facts. He also submits that he responded to the fairness letter in an effort to explain the error and provided copies of his study visas and his work permits.\n\nFurther, the Applicant submits that only if information affects the process undertaken or the final decision will it be considered to be material (ENF 2; Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 166 [Ali]). Here the answer to the question of whether he had previously been denied a visa was not material to the process because the application was complete and could be processed regardless of the answer provided. Nor did his answer put into doubt other important information about himself. The Respondent\n\nThe Respondent submits that the Applicant’s failure to disclose the previous temporary resident visa application constituted a material misrepresentation.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-12", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 25–26", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Respondent refers to the requirements of the IRPA, the IRPA Regulations as well as ENF 2 and concludes that the Officer properly applied these provisions which required the Applicant to provide complete and truthful information. The failure to disclose the previous temporary residency visa refusal was a relevant matter to weigh when considering the Applicant’s subsequent application and could have induced an error in the administration of the IRPA. Accordingly, the failure to disclose this matter renders the Applicant inadmissible by virtue of section 40 of the IRPA and the Decision is therefore, reasonable. The Respondent relies on Oloumi and Haque, both above, in support of its position.\n\nThe Respondent submits that the Applicant was aware of the error in his application and, while he may have brought this to the attention of his immigration consultant, he himself signed and declared the application to contain truthful answers. Accordingly, this error was not beyond his control, he was alive to it and could and should have reviewed the application prior to signing it to ensure that the error had been rectified and that the application was accurate. Therefore, the Applicant cannot now claim that he honestly and reasonably believed in the veracity of the answers (Oloumi, above, Khorasgani v Canada (Minister of Citizenship and Immigration), 2012 FC 1177 at paras 14-18). The Respondent submits that the Applicant’s reliance on Medel, above is misplaced in the circumstances of this case.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-13", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 27", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "Further, in response to the fairness letter, the Applicant provided a statutory declaration stating that he had never engaged in any unauthorized full time employment while a holder of an OCWP and that he had never received a request from an immigration officer to surrender his OCWP. The Officer examined the file and determined that this contradicted the Applicant’s own application, the CIC record and other evidence. Accordingly, it was open for the Officer to conclude that the Applicant had continued to be dishonest. This indicated a pattern of providing untruthful information in breach of the Applicant’s statutory duty of candour and therefore justified the Officer’s decision. Analysis", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-14", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 28", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In Oloumi, above, Justice Tremblay-Lamer describes general principles arising from this Court’s treatment of section 40 of the IRPA which are summarized below together with other such principles arising from the jurisprudence: - Section 40 is to be given a broad interpretation in order to promote its underlying purpose (Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at para 25 [Khan]); - Section 40 is broadly worded to encompasses misrepresentations even if made by another party, including an immigration consultant, without the knowledge of the applicant (Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35 [Jiang]; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paras 55-56 [Wang]); - The exception to this rule is narrow and applies only to truly extraordinary circumstances where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the misrepresentation was beyond the applicant’s control (Medel, above); - The objective of section 40 is to deter misrepresentation and maintain the integrity of the immigration process.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-15", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 28", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "To accomplish this, the onus is placed on the applicant to ensure the completeness and accuracy of their application (Jiang, above, at para 35;Wang, above, at paras 55-56); - An applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada (Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at para 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15); - As the applicant is responsible for the content of an application which they sign, the applicant’s belief that he or she was not misrepresenting a material fact is not reasonable where they fail to review their application and ensure the completeness and veracity of the document before signing it (Haque, above, at para 16; Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450 at para 31 [Cao]); - In determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose (Oloumi, above, at para 22); - A misrepresentation need not be decisive or determinative. It is material if it is important enough to affect the process (Oloumi, above, at para 25); - An applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application. The materiality analysis is not limited to a particular point in time in the processing of the application. (Haque, above, at paras 12 and 17; Khan, above, at paras 25, 27 and 29; Shahin v Canada (Minister of Citizenship and Immigration), 2012 FC 423 at para 29 [Shahin]);", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-16", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 29–30", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "Here, the Applicant submits that he had no knowledge of the misrepresentation which was caused by his immigration consultant’s failure to correct a clerical error. The Applicants submits that he instructed the consultant to change the answer of “no” to “yes” in response to the question “Have you ever been refused any kind of visa, admission or been ordered to leave Canada or another country?” However, that the consultant failed to do so before submitting the application.\n\nAs noted above, subsection 40(1)(a) is broadly worded as to include misrepresentations even if made by another party without the knowledge of the applicant, the general rule being that a misrepresentation can occur without the applicant’s knowledge (Jiang, above, at para 35; Cao; above, at para 31; Haque, above, at para 15;Wang, above, at paras 55-56; Shahin, above, at para 26).", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-17", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 31", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "While an exception to this principle arises where an applicant can show that he or she honestly and reasonably believed that they were not withholding material information (Medel, above), this exception is narrow. As the court stated in Oloumi, above: [35] Despite being frequently cited, the “exception” referred to in this passage has received limited application. Its originating case, Medel, above, involved an unusual set of facts: the applicant was being sponsored by her husband, but unbeknownst to her the husband withdrew his sponsorship. Canadian officials then misled the applicant by asking her to return the visa because they claimed it contained an error. They implied it would be returned to her, corrected. The applicant had English-speaking relatives inspect the visa and, after they assured her that nothing was wrong with it, she used it to enter Canada. The Immigration Appeal Board found her to be a person described in section 27(1)(e) of the former Immigration Act, 1976, SC 1976-77, c 52 [now RSC 1985, c I-2)], i.e. that she had been “granted landing… by reason of any fraudulent or improper means”. This finding was set aside by the Federal Court of Appeal because the applicant had “reasonably believed” that she was not withholding information relevant to her admission. [36] When considered within its factual context, therefore, the exception in Medel is relatively narrow. As Justice MacKay noted while distinguishing the case before him in Mohammed v Canada (Minister of Citizenship & Immigration), 1997 CanLII 5084 (FC), [1997] 3 FC 299: 41 The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-18", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 31–32", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute “subjective unawareness” of the material information as contemplated in Medel. Furthermore, I emphasize that a determinative factor in the Medel case was that the applicant had reasonably believed that she was not withholding information from Canadian authorities. In contrast, in the case before this Court the applicants did not act reasonably—the principal applicant failed to review his application to ensure its accuracy.\n\nIn Haque, above, the applicants therein similarly argued that the misrepresentations were not intentional and that it was their consultant who erred in filling out the application. Justice Mosley rejected this argument and stated the following: [15] […] Nonetheless, he signed the application and so cannot be absolved of his personal duty to ensure the information he provided was true and complete. This was expressed succinctly by Justice Robert Mainville at para 31 of Cao, supra: The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-19", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 33", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The present case is also factually very similar to Diwalpitiye v Canada (Minister of Citizenship and Immigration), 2012 FC 885 [Diwalpitiye]. The applicant therein indicated on his application form that he had never applied for, or been refused, immigration status in Canada. When the officer raised this as a concern in a fairness letter, the applicant responded by explaining that he had previously applied for a temporary resident visa, which was refused, but a subsequent application was successful. While he admitted this error in completing the application form, he requested that his application be processed because the error was merely an oversight. Justice Rennie found that the applicant had not persuaded the Court that it was unreasonable for the officer to find this to be a material misrepresentation.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-20", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 34–36", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In my view, the Applicant in this case clearly made a misrepresentation by failing to disclose the prior CIC Los Angeles refusal to issue a temporary residency visa in his October 2012 application. He was aware of the error in his application and was responsible for ensuring that, when submitted, his application was accurate and truthful. However, he failed to review the application before it was submitted. Further, the fact of the prior refusal and of the identified clerical error in his application and whether or not it had been corrected was information that was within his control. The Applicant therefore failed to demonstrate that he honestly and reasonably believed that he was not withholding potentially material information. This situation does not, therefore, fall within the narrow exception found in Medel, above. It was reasonable for the Officer to conclude that the Applicant had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA and had misrepresented that fact.\n\nThis leaves only the question of whether the misrepresentation was material.\n\nSubsection 40(1)(a) of the IRPA states that a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. ENF 2 gives as an example of a situation constituting misrepresentation, one where an applicant fails to disclose that they recently applied for a visa to Canada.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-21", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 37–38", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "As noted above, in determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose. To be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The wording of section 40 confirms that a misrepresentation does not actually have to induce an error, it is enough that it could do so (IRPA, subsection 40(1)(a); Oloumi, above, at paras 22 and 25; Haque, above, at para 11; Mai v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 101 at para 18; Nazim v Canada (Minister of Citizenship and Immigration), 2009 FC 471)).\n\nIn Haque, above, the applicant failed to disclose that he had formerly lived and studied in the United States and omitted or misrepresented details with respect to his place of residence, education and employment history. The deciding officer discovered the omission upon a review of CIC’s records. This Court held that the withheld information was material to the application as, without it, a visa could have been issued to the applicant without the required police and conduct certificates from the United States, thereby precluding a necessary investigation and inducing an error in the administration of the IRPA.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-22", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 39–41", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In Oloumi, above, a fraudulent English test was submitted as part of an application for permanent residence in the Federal Skilled Worker class. This Court held that the misrepresented fact was material because federal skilled workers must demonstrate language proficiency to be accepted. The false document could have induced an error in the administration of the IRPA because it could have been relied upon by a decision-maker to conclude that the applicant had demonstrated language proficiency.\n\nIn the present case, the Respondent submits that the Officer could have been prevented from undertaking an appropriate investigation and verification process and, therefore, could have erroneously determined that the Applicant met all the requirements of the IRPA had the Officer relied on the Applicants denial of a prior visa refusal. The misrepresentation was therefore material as it could have affected the process.\n\nIn my view, the misrepresentation in this case was material.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-23", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 42", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Officer does not specify what investigation and verification process potentially could have been bypassed as a result of the misrepresentation. However, section 9.5 of ENF 2 states that officers are required to be satisfied that a person meets the requirements of the IRPA and is not inadmissible. To make these determinations officers decide what procedures, including investigations, interviews and verifications are required. Some procedures are required by law, others are administrative. Given this discretion, and although it would have been preferable for the Officer to have been more specific, the failure to do so is not fatal. In any event, had he relied solely on the application which did not disclose the prior visa refusal, this could have induced an error in the administration of the IRPA as he could have erroneously issued a visa to the Applicant.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-24", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 43–44", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "I also cannot accept the Applicant’s submission made when appearing before me that, because CIC has access to the whole of his immigration history, an incorrect answer in his application is not material. His submission was that the incorrect answer did not affect the process because it was caught by CIC before a decision was rendered. This reasoning is contrary to the object, intent and provisions of the IRPA which require applicants for temporary residency visas to answer all questions truthfully. The penalty for failing to do so is that an applicant may be found to be inadmissible to Canada if the misrepresentation induces or could induce an error in the administration of the Act. It matters not that CIC may have the ability to catch, or catches, the misrepresentation. What matters is whether the misrepresentation induced or could have induced such an error. Accordingly, applicants who take the risk of making a misrepresentation in their application in the hope that they will not be caught but, if they are, that they can escape penalty on the premise of materiality, do so at their peril.\n\nNor was the misrepresentation cured by the Applicant’s response to the fairness letter. In this regard Justice Mosley in Haque, above, stated that “this Court has rejected the argument that paragraph 40(1)(a) is inapplicable where the misrepresentation is “corrected”: (Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paras 25, 27 and 29).”", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-25", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 45", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "At the hearing before me the Applicant also submitted that because, between the time when the temporary residency visa was refused in Los Angeles and the time of the refusal in Seattle he was issued a work permit, this rendered the first refusal immaterial as the immigration authorities were clearly satisfied with his subsequent application. I cannot accept this reasoning. First, the refused applications were both for temporary residency visas, the work permit was a distinct application. Secondly, it is not known if the Applicant was requested to or did disclose the refused temporary residency when he applied for the work permit as neither the Applicant nor the Respondent led evidence on this point. And finally, the question asked on the temporary visa application was whether the Applicant had ever been refused any kind of visa, thus it was incumbent upon him to disclose the prior refusal regardless of the subsequent issuance of the work permit.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-26", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 46–47", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In addition to the failure to disclose the refusal, which was his statutory and duty of candour, the Applicant stated in his Statutory Declaration that he had never engaged in any unauthorized full time employment while holding an OCWP. However, this is contradicted by Attachment A of his October 11, 2012 application and the September 7, 2012 letter from IVIS Inc., which states that when the Applicant completed his education at NAIT, he started full time work on December 20, 2012 with IVIS Inc. This means that from December 20, 2010 until he was issued a work permit on June 1, 2012, he was working full time while not a student and holding only an OCWP thereby contravening the conditions of his prior admission to Canada. Accordingly, the Officer’s finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary residence based on the prior contravention was reasonable..\n\nIt should be noted, however, that the Officer’s assertion in the fairness letter that the Applicant was requested to surrender his OCWP but failed to comply and that this was the primary reason for the refusal of his Los Angeles application, is not supported by the CTR.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-27", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 48", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Respondent filed an affidavit of Ms. Leah Gabretensae, Admissions Unit Supervisor at CIC in response to the subject application. It attaches as an exhibit an email dated July 12, 2013 from Ms. Gabretensae to counsel for the Respondent stating that she had spoken to Rachel, no last name, at Norquest who confirmed that the Applicant was enrolled there from 2007 to April 24, 2009 taking upgrading courses with the intent of then entering the practical nursing program. He did not continue there beyond April 2009. The affidavit also attaches as an exhibit an email dated July 13, 2013 from Ms. Kathy Galloway to Ms. Gabretensae and counsel for the Respondent stating that NAIT had checked its records and advised her that the Applicant began his studies there in January 2010 and completed the one year Water and Waste Management Technician program in December 2010 with honours. The affidavit goes on to state that the designated institutional representative (DIR) “at the post-secondary educational institution where the Applicant was enrolled at that time [when the April 24, 2009 OCWP was issued] would have informed the Applicant that the Applicant was required to surrender the Work Permit to the nearest CIC office once he no longer met the eligibility criteria”. The affidavit states that it (the affidavit) was made for the purpose of opposing the Applicant’s application for judicial review.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-28", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 49–50", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "It appears that the purpose of the affidavit was to bolster the CTR which contains no record supporting the finding by the Officer that the Applicant was actually asked, but refused, to surrender his OCWP nor explaining why he was not in compliance with the OCWP at some time before a February 1, 2012 GMCS entry which stated this to be the case but at which time the Applicant was enrolled full time at NAIT. The affidavit evidence as to the general responsibilities of DIR’s in administering OCWP’s, including informing students of the surrender requirements, is not evidence that the Applicant was requested to and refused to surrender same. Moreover, it is trite law that new evidence is only admissible on judicial review to resolve issues of procedural fairness or jurisdiction which exceptions have no application in this case (Oloumi, above, at para 10; Alabadleh v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at para 6; Albajjali v Canada (Minister of Citizenship and Immigration), 2013 FC 660 at para 12).\n\nHowever, even in the absence of an evidentiary basis for the assertion that the Applicant was requested to and refused to surrender the OCWP and that this was the primary reason for the Los Angeles refusal, there was, as set out above, a sufficient evidentiary basis in the record before the Officer to support the fact that the Applicant worked full time while holding only a OCWP, after graduation from NAIT, from December 20, 2010 to June 1, 2012.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-29", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 51", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Applicant contravened the conditions of his admission to Canada on a prior occasion by working full time when not authorized to do so and he misrepresented this in his statutory declaration. He also misrepresented his prior temporary resident visa refusal. In my view, both misrepresentations were material. Accordingly, the Officer’s finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident and that he had made material misrepresentations pursuant to subsection 40(1)(a) of the IRPA was reasonable and defensible in respect to the facts and the law. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No question of general importance for certification was proposed and none arises. “Cecily Y. Strickland” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-674-13 STYLE OF CAUSE: GOBURDHUN v MCI PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: August 27, 2013 REASONS FOR JUDGMENT AND JUDGMENT BY: STRICKLAND J. DATED: September 23, 2013 APPEARANCES: Ranbir S. Thind FOR THE APPLICANT Anna Kuranicheva FOR THE RESPONDENT SOLICITORS OF RECORD: Ranbir Thind & Associates Edmonton, Alberta FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta FOR THE RESPONDENT", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-492842-1", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 1", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Lorebeth Garcia’s application for permanent residence as a member of the live-in caregiver class was refused because her husband, Joresce Ballesteros, was found criminally inadmissible to Canada. That inadmissibility was based on a bar fight in the Philippines in 2006 that resulted in charges against Mr. Ballesteros that were later withdrawn when the complainant filed an Affidavit of Desistance stating that the accused parties, including Mr. Ballesteros, had no intention to kill or injure him and that if called to testify, his testimony would completely exonerate the accused. A visa officer concluded that Mr. Ballesteros’ acts amounted to assault causing bodily harm under sections 265 and 267 of the Criminal Code, RSC 1985, c C-46, and that despite the withdrawal of the charges there were reasonable grounds to believe that the offence had occurred. They therefore concluded Mr. Ballesteros was inadmissible pursuant to paragraph 36(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-2", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 2–4", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "For the reasons given below, I agree with Ms. Garcia that the visa officer’s decision was unreasonable and unfair. The visa officer did not undertake the requisite assessment of the elements of the Canadian offence, and in particular the defence of self-defence that Mr. Ballesteros had maintained since the charges were filed. Nor did the visa officer adequately assess the evidence as a whole, set out why they did not accept Mr. Ballesteros’ evidence, or explain why the evidence continued to provide reasonable grounds to believe an offence was committed notwithstanding the complainant’s Affidavit of Desistance. Finally, it was unreasonable for the visa officer to assume the Affidavit of Desistance and subsequent withdrawal of the charges resulted from a settlement in the absence of evidence to that effect. It was also unfair to have done so without giving Ms. Garcia notice of this issue and an opportunity to respond thereto.\n\nThe application for judicial review is therefore allowed.\n\nWhile phrased somewhat differently, the primary issues raised by Ms. Garcia on this application for judicial review are the following: Did the visa officer err in finding that Mr. Ballesteros was inadmissible pursuant to paragraph 36(1)(c) of the IRPA by failing to undertake the required analysis of the offence and/or unreasonably assessing the evidentiary record? Did the visa officer breach the duty of procedural fairness in reaching their decision?", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-3", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 5–6", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The parties agree that the first of these issues goes to the merits of the visa officer’s decision and is reviewable on the reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25. To assess the reasonableness of a decision, the Court considers “the outcome of the administrative decision in light of its underlying rationale, in order to ensure that the decision as a whole is transparent, intelligible and justified”: Vavilov at paras 15. In doing so, the Court considers the administrative context of the decision, including the institutional setting and the evidence and submissions before the decision maker: Vavilov at paras 89–96, 125–128. A reasonable decision has an “internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker”: Vavilov at paras 85, 90, 99, 105–107. While reasonableness review is “robust,” the Court will not set aside a decision unless satisfied there are “sufficiently serious shortcomings such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov at paras 12–13, 99–100.\n\nThe second issue goes to the process leading to the decision, rather than the substance of the decision itself. On such issues, the Court asks whether a fair and just process was followed, having regard to all of the circumstances: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54. Such review is “best reflected in the correctness standard,” although no standard of review is actually being applied: Canadian Pacific at para 54, quoting Eagle’s Nest Youth Ranch Inc v Corman Park (Rural Municipality #344), 2016 SKCA 20 at para 20.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-4", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 7–8", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "I note for completeness that Ms. Garcia’s application for judicial review also raised an issue regarding the visa officer’s failure to consider deemed rehabilitation. That argument was withdrawn at the hearing.\n\nMs. Garcia has worked in Canada as a live-in caregiver since 2009. She applied for permanent residence in 2011 as a member of the then “live-in caregiver class” and added her husband, Mr. Ballesteros, as an accompanying dependent in the application in 2014. Ms. Garcia’s application was governed by, among other provisions, subparagraph 72(1)(e)(i) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which requires a foreign national in Canada seeking to become a permanent resident to establish that “they and their family members, whether accompanying or not, are not inadmissible.”", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-5", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 9", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Subsection 36(1) of the IRPA sets out grounds for inadmissibility for serious criminality. While the only applicable provision in the current case is paragraph 36(1)(c), I also reproduce paragraph 36(1)(b) as it is relevant to some of the discussion below: Serious criminality Grande criminalité 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] […] (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-6", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 10–12", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Section 33 of the IRPA provides that the facts that constitute criminal inadmissibility include those for which there are “reasonable grounds to believe” have occurred: Rules of interpretation Interprétation 33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33 Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.\n\nThe Supreme Court of Canada has described this standard as being more than mere suspicion, but less than a balance of probabilities: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114. Reasonable grounds exist “where there is an objective basis for the belief which is based on compelling and credible information”: Mugesera at para 114. The decision maker must be satisfied that these facts as found on the “reasonable grounds to believe” standard do constitute an offence, as a question of law: Mugesera at para 116.\n\nThe relevant issue addressed by the visa officer was therefore whether there were reasonable grounds to believe Mr. Ballesteros, as a family member of Ms. Garcia, had committed an act in the Philippines that is an offence there and that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-7", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 13–14", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Mr. Ballesteros and four of his companions were charged in the Philippines with “frustrated homicide.” The charge arose from an event in June 2006 in which Mr. Ballesteros’ group was involved in a fight outside a karaoke bar in Echague with two other men, Joenard Humiwat and Jacinto Balisi. The complainant, Mr. Humiwat, alleged he was hit with a beer bottle by one of Mr. Ballesteros’ friends, and was then severely beaten by Mr. Ballesteros’ group. Mr. Humiwat suffered numerous injuries including traumatic brain injury, facial injuries, and a skull fracture.\n\nThe five co-accused filed a joint affidavit in the Philippine criminal proceeding. They alleged that there had been earlier verbal altercations in the karaoke bar between the co-accused on the one hand and Mr. Humiwat and Mr. Balisi, on the other. After Mr. Ballesteros’ group left the bar, Mr. Balisi stabbed one of them without warning. In the ensuing melee, Mr. Ballesteros was also stabbed when he tried to intervene. The co-accused agreed that there was a fistfight, but asserted that they were acting in self-defence and denied any of them hit Mr. Humiwat with a bottle. This directly contradicted Mr. Humiwat’s story. Mr. Ballesteros in particular swore in the affidavit that it was physically impossible for him to have attacked Mr. Humiwat since he had already been injured from the stabbing.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-8", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 15–17", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The prosecutor in the case concluded that despite the co-accused’s assertions, these were matters of defence “best appreciated after a full-blown trial in court.” He therefore signed a resolution recommending the filing of an information. Mr. Ballesteros and the other accused filed a motion seeking reconsideration of that resolution. In an order dismissing the motion, the prosecutor found that there was “enough ground to believe that they committed the crime charged and they are probably guilty thereof and should be held for trial.” At the same time, the prosecutor noted that there were matters of credibility and that the only issue for him was whether there was sufficient evidence to establish a belief that the crime had been committed. He also concluded that the defence of self-defence was something the accused had the burden of proving and that they “must be given the chance to prove their defense before the proper court.” An Information was therefore laid in March 2007.\n\nIn March 2009, the prosecutor filed a motion to dismiss the case. The motion was based on Mr. Humiwat’s sworn “Affidavit of Desistance,” in which he asserted that: what transpired was “but a product of misapprehension of facts and misunderstanding”; the accused had no intention to kill or injure him; he was no longer interested in prosecuting the case or standing as witness; and should he be called to testify, he would “testify so as to completely exonerate [the accused] from any civil or criminal liability.”\n\nThe Information against Mr. Ballesteros and the others was dismissed by order of a judge on March 5, 2009.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-9", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 18–19", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The Global Case Management System (GCMS) notes show that in December 2018, a visa officer in Manila reviewed Mr. Ballesteros’ criminal file from the Philippines. After referring to the charge laid against Mr. Ballesteros, the visa officer’s analysis proceeded as follows: Said case was dismissed on 05 March 2009 following years of hearings that culminated in the complainant executing an affidavit of desistance stating that he was no longer interested in pursuing the case. On his written explanation, Joresce states that the physical injuries sustained by the complainant was a result of the complainant and his friend’s attack on him and his friends. Meanwhile, in his affidavit, the complainant states that one of Joresce’s companions hit him with a bottle of beer on the head which caused him to fall to the ground while the rest, Joresce included, started to beat him up. While the complainant executed an affidavit of desistance, based on the court documents on file including the medical cert of the complainant, I am satisfied that Joresce committed an act which, if committed in Canada can be equated to assault causing bodily harm as described in Section 265(1) of the Canadian Criminal Code […] [Emphasis added.]\n\nThe remainder of the visa officer’s analysis in the December 2018 entry simply reproduces portions of sections 265 and 267 of the Criminal Code, and concludes that Mr. Ballesteros is inadmissible pursuant to paragraph 36(1)(c) of the IRPA.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-10", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 20", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Following this entry, a “fairness letter” was issued to Ms. Garcia, stating that Mr. Ballesteros had been found inadmissible pursuant to paragraph 36(1)(c) of the IRPA and providing an opportunity to make submissions on the issue. Ms. Garcia responded with submissions and a statutory declaration from Mr. Ballesteros, each of which underscored his version of the events at the bar and his view that he was wrongly charged. Mr. Ballesteros also repeated that he and his companions were the first to have filed a complaint with the police against Mr. Balisi, and that the complaint against Mr. Ballesteros and his friends had been brought to respond to the complaint against Mr. Balisi. Ms. Garcia noted the dismissal of the charges and cited this Court’s decision in Arevalo Pineda for the principle that dismissal of charges is prima facie evidence that the crimes were not committed: Arevalo Pineda v Canada (Citizenship and Immigration), 2010 FC 454 at para 31.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-11", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 21", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The file was again referred to Manila. The same officer considered the file and in further GCMS notes dated July 2019 focused on the withdrawal of the charge and the Affidavit of Desistance: I had already taken note of the dismissal of the case during the initial criminality review. Nonetheless, an affidavit of desistance executed by the complainant does not necessarily mean that the act Joresce was accused of was not committed by him. Given the lengthy process of trial in the Philippines, it is common practice to settle cases outside of the court. If all parties are amenable to the terms of the settlement, the workaround is for the complainant to execute an affidavit of desistance stating that they misunderstood the facts and that they are no longer willing to pursue with the case. This is in view of having the case dismissed for reason that there will no longer be a witness to testify in court and the accused’s guilt can therefore not be established beyond reasonable doubt. Therefore, despite the dismissal, the officer must still thoroughly review the circumstances that led to the filing of the charge including the evidences that have been submitted in order to make an accurate admissibility assessment. I have considered the reply to the procedural fairness letter however the information included therein does not change my assessment on the criminality of PA-CDA’s spouse. Based on the information before me, I am still satisfied that Joresce is criminally inadmissible to Canada under A36(1)(c). [Emphasis added.]", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-12", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 22–23", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Ms. Garcia’s file was referred to Edmonton, where a visa officer relied on the Manila officer’s conclusion in reaching the determination that Ms. Garcia was inadmissible and refusing her application for permanent residence. Although the Edmonton visa officer said their decision was made based on the information before them, they conducted no independent analysis of the matter. The reasons for the refusal are therefore effectively those of the officer in Manila as set out in the two GCMS notes of December 2018 and July 2019, and the parties argued the application on this basis.\n\nThe visa officer concluded there were reasonable grounds to believe Mr. Ballesteros committed acts that if committed in Canada, would constitute the offence of assault causing bodily harm. To reasonably reach this conclusion, the visa officer had to assess whether there were reasonable grounds to believe Mr. Ballesteros committed acts that would meet the elements of the Canadian offence. It is worth noting that in Vavilov, the Supreme Court used criminality findings in the immigration context as an example of the legal constraints imposed by precedent. The Court underscored that it would “clearly not be reasonable” for an immigration tribunal considering whether an applicant’s act constitutes a criminal offence under Canadian law to adopt an interpretation inconsistent with how Canadian criminal courts have interpreted it: Vavilov at para 112. While the evidentiary standard applicable in the context of criminal inadmissibility is lower than the standard applicable in a criminal prosecution, the question of law as to what constitutes an offence remains the same: Mugesera at para 116.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-13", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 24–25", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "As stated above, the visa officer reproduced the definition of assault in subsection 265(1) of the Criminal Code and the language of subsection 267(b), which provides for a maximum ten-year sentence where an assault causes bodily harm. While the visa officer did not specifically enumerate the various elements of the offence, an administrative decision need not take the form of a jury charge or a criminal court decision: Vavilov at paras 91–92. Nonetheless, for reasons to be “justified,” it must be clear that the analysis required by the applicable statutory provision has been undertaken in some form or other: Vavilov at paras 95–96, 108.\n\nHere, the visa officer clearly considered certain elements of the offence, including the existence of bodily harm (referring to the “medical cert of the complainant”) and whether Mr. Ballesteros had been involved in the assault on Mr. Humiwat. Ms. Garcia argues, however, that the officer did not address the issues of whether Mr. Ballesteros himself caused Mr. Humiwat’s injuries and whether his actions were undertaken in self-defence.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-14", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 26", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "I question whether the visa officer necessarily had to address whether Mr. Ballesteros himself caused the injuries, in light of section 21 of the Criminal Code and the principle of accessorial liability. However, I need not decide that issue since I agree it was unreasonable for the officer not to undertake any material assessment of the issue of self-defence. Subsection 34(1) of the Criminal Code outlines a defence to an offence in Canada based on the use or threat of force: Defence – use or threat of force Défense – emploi ou menace d’emploi de la force 34 (1) A person is not guilty of an offence if 34 (1) N’est pas coupable d’une infraction la personne qui, à la fois : (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; a) croit, pour des motifs raisonnables, que la force est employée contre elle ou une autre personne ou qu’on menace de l’employer contre elle ou une autre personne; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and b) commet l’acte constituant l’infraction dans le but de se défendre ou de se protéger — ou de défendre ou de protéger une autre personne — contre l’emploi ou la menace d’emploi de la force; (c) the act committed is reasonable in the circumstances. c) agit de façon raisonnable dans les circonstances", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-15", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 27–28", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Mr. Ballesteros’ evidence, both before the criminal court in the Philippines and in his statutory declaration filed with the visa officer, was that force had been used against both the friend who had been stabbed and himself, and that all physical acts he took against Mr. Humiwat were undertaken for the purpose of defending himself and his friends from Mr. Humiwat and Mr. Balisi. While Ms. Garcia’s submissions in response to the fairness letter (filed by her former counsel) could have been clearer on the subject, both those submissions and Mr. Ballesteros’ statutory declaration raised the issue of self-defence, which was central to Mr. Ballesteros’ response to the allegation that he had committed a crime.\n\nTo assess whether an act constitutes an offence in Canada it is necessary to consider not only the elements of the offence but the applicable defences: Li v Canada (Minister of Citizenship and Immigration), [1997] 1 FC 235 (CA) at para 19. While Li was decided in the context of an equivalency assessment, discussed further below, in my view the principle applies equally whether the issue is equivalency or simply whether the acts constitute an offence in Canada. The Minister did not argue otherwise. Rather, the Minister argues that the visa officer effectively considered the issue of self-defence, since the Philippine prosecutor considered the self-defence argument and decided to nonetheless dismiss the co-accused’s motion for reconsideration and lay an information.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-16", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 29", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "I cannot accept the Minister’s arguments for a number of reasons. First and foremost, there is no indication in the GCMS notes that the visa officer materially considered the issue of self-defence or relied on the dismissal of the reconsideration motion as a basis for reaching a conclusion on self-defence. The only reference in the GCMS notes to the question of self-defence is the statement in the December 2018 notes that Mr. Ballesteros “states that the physical injuries sustained by the complainant was a result of the complainant and his friend’s attack on him and his friends.” Having summarized Mr. Ballesteros’s evidence in this way, the visa officer gave no further consideration to the issue of self-defence. As the Supreme Court noted in Vavilov, a decision maker’s reasons are the primary mechanism by which they communicate the rationale for their decision and show they have listened to the parties: Vavilov at paras 81, 84, 127. Absent any reference to the question of self-defence in the visa officer’s reasons, this Court should not make assumptions about the visa officer’s reasoning on that significant issue: Vavilov at paras 96, 128.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-17", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 30–31", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Further, the visa officer is tasked with assessing whether there are reasonable grounds to believe that Mr. Ballesteros committed acts that would constitute an offence in Canada. As the Minister conceded in argument, the visa officer cannot simply delegate that decision-making to a foreign prosecutor. In any case, to the extent that the Philippine prosecutor considered that the defence of self-defence needed to go to trial, they did so in the context of Philippine law. The visa officer had to assess whether there were reasonable grounds that the acts would have constituted an offence in Canada, something the Philippine prosecutor did not address.\n\nIt is also important to note that the prosecutor’s decision on the reconsideration motion was only that there was sufficient evidence to lay charges against the co-accused. As the parties agree, evidence surrounding charges can be taken into consideration, but the charges themselves cannot be used as evidence of criminality: Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326 at para 50. While the visa officer was entitled to consider the evidence leading to the laying of charges, they could not rely on the mere decision to lay charges.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-18", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 32–34", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Finally, the evidentiary record before the visa officer was very different from the evidentiary record before the Philippine prosecutor when the reconsideration motion was dismissed. In addition to Mr. Ballesteros’ further statutory declaration, the visa officer had the Affidavit of Desistance signed by Mr. Humiwat and the dismissal of the charges in the Philippines. This evidence is addressed further below, but the fact that the reconsideration motion was decided based on a different record further undermines the Minister’s argument that the visa officer implicitly assessed the self-defence issue through reliance on the reconsideration motion.\n\nGiven the availability of the defence of self-defence, and the importance of that defence to Mr. Ballesteros’ response to the criminal allegations, it was unreasonable for the visa officer not to have meaningfully addressed it before reaching a finding on admissibility.\n\nMs. Garcia also challenges the visa officer’s treatment of the evidence, particularly the evidence about who instigated the incident and the evidence related to the withdrawal of the charges. I agree with Ms. Garcia that the visa officer’s assessment of this evidence was unreasonable.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-19", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 35–36", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "As reproduced above, the visa officer in the December 2018 GCMS notes briefly addressed the difference between Mr. Ballesteros’ and Mr. Humiwat’s evidence as to who instigated the attack. However, the visa officer’s only analysis of this evidence was that “based on the court documents on file including the medical cert of the complainant,” they were satisfied that Mr. Ballesteros had committed the act. The complainant’s medical certificate, not surprisingly, speaks only to Mr. Humiwat’s injuries, which are not in issue. In my view, it is unreasonable in the circumstances for the visa officer’s analysis of the conflicting evidence on a material issue to be limited to the broad statement that their conclusion was “based on the court documents.”\n\nThe court documents in question included medical evidence confirming that Mr. Ballesteros’ friend suffered multiple stab wounds, and that Mr. Balisi was charged (also with “frustrated homicide”) for that attack, each of which arguably corroborated Mr. Ballesteros’ evidence. It also included not only Mr. Ballesteros’ evidence but that of the other accused, which similarly corroborated the account. The visa officer did not discuss this exonerating evidence or the further evidence contained in Mr. Ballesteros’ statutory declaration, and gave no reason why they chose not to accept or rely on that evidence. Nor did the officer give any indication of why they remained satisfied in the face of this evidence that Mr. Humiwat’s initial complaint was enough to establish reasonable grounds to believe Mr. Ballesteros had committed a crime.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-20", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 37", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Rather, the only consideration the visa officer addressed in any detail was the withdrawal of charges and associated Affidavit of Desistance. In the July 2019 GCMS notes, the visa officer discounted the Affidavit of Desistance because it was “common practice [in the Philippines] to settle cases outside of the court,” with an affidavit of desistance being part of the “workaround” if the parties are amenable to terms of settlement. However, as Ms. Garcia correctly points out, there was no evidence before the visa officer of there having been any settlement or terms of settlement associated with the affidavit. To the contrary, Mr. Ballesteros’ statutory declaration stated that “the reason why Joenard withdrew the charges against us and the case was dismissed” was that he realised that they had been the ones at fault. The situation is thus very different than that in Urdas, relied on by the Minister, in which there was evidence both that the dismissal of the complaint was the result of a settlement, and of the terms of that settlement: Urdas v Canada (Citizenship and Immigration), 2019 FC 131 at paras 15, 23, 27–28. While the Minister suggests that the visa officer did not conclude that a settlement occurred in this particular case, the only reason the visa officer’s discussion of settlements would have any relevance to the evidence before them would be if they reached such a conclusion.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-21", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 38–40", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Without any further evidence or rationale, it was unreasonable for the visa officer to speculate or assume that the Affidavit of Desistance was filed as a term of settlement and to discount its contents as a result. This is particularly so where the assumption (a) directly contradicts Mr. Ballesteros’ evidence regarding the reason for the withdrawal, and (b) implies that the sworn evidence in the Affidavit of Desistance was untrue. In the Affidavit of Desistance, Mr. Humiwat stated that Mr. Ballesteros had no intention to injure him, and that his evidence would “completely exonerate” Mr. Ballesteros and the other accused from any criminal liability. The visa officer effectively concluded that this evidence was not to be accepted based on their speculation that it was filed as part of a settlement.\n\nThis is significant given that the only evidence that Mr. Ballesteros committed acts that constitute assault causing bodily harm (as opposed to acts of self-defence) came from Mr. Humiwat’s earlier statement, which he effectively withdrew through the Affidavit of Desistance. Without further analysis, it was unreasonable for the visa officer to conclude, in essence, that Mr. Ballesteros was not to be believed and that Mr. Humiwat’s earlier statement gave rise to reasonable grounds to believe that the crime was committed notwithstanding his sworn withdrawal of material aspects of that statement.\n\nIn this regard, Ms. Garcia points to the conclusion in Arevalo Pineda that the dismissal of charges is prima facie evidence the crimes were not committed: Arevalo Pineda at para 31. The Minister agrees with this principle, but argues that this presumption can be rebutted based on the evidence and facts of the case.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-22", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 41", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "In this regard, I believe the approach taken in Red v Canada (Citizenship and Immigration), 2018 FC 1271, another case involving an affidavit of desistance as part of a withdrawal of charges in the Philippines, is instructive. At paragraph 28 of that decision, Justice Walker noted the following: The Affidavit of Desistance and the Order of the Trial Court are unequivocal. The elements of an offence under BPB 22 could not be established on the basis of the Applicant’s actions. The complainant, AsiaLink, swears in the Affidavit that its understanding of the facts was incorrect such that the prosecution of the case could not be successful. The Trial Court accepted the Affidavit of Desistance and withdrew the charge. I recognize that section 33 of the IRPA requires only that an officer have reasonable grounds to believe that an offence was committed by the Applicant outside of Canada. However, in light of the evidence in the record to the contrary, the Officer was required to explain in some detail the conclusion that an offence was committed. The Officer’s statement in the GCMS notes that the Applicant could not explain AsiaLink’s misunderstanding is not a sufficient explanation. [Emphasis added.]", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-23", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 42", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The Minister relies on the subsequent decision in Urdas, in which Chief Justice Crampton upheld an inadmissibility finding despite the withdrawal of charges and an affidavit of desistance. Importantly, the officer’s decision in that case relied on various findings and facts, including Mr. Urdas’ own contradictory statements regarding the settlement of the charges, the fact that the complainant’s affidavit of desistance did not say Mr. Urdas did not commit the offence, and the presence of multiple witnesses in addition to the complainant: Urdas at paras 23–26. The Chief Justice distinguished Red on the basis that the affidavit of desistance in Red stated that there had been a “misaccounting and a misapprehension of facts,” whereas that in Urdas simply stated that the complainant was no longer certain the accused were the ones who stabbed them: Urdas at paras 25–26. The Chief Justice underscored that the dismissal of the charges required the officer to “exercise caution” and be satisfied that there were nonetheless reasonable grounds for the inadmissibility finding: Urdas at para 38. However, given the officer’s factual findings, it was reasonably open to them to reach such a conclusion in that case: Urdas at paras 38–39.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-24", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 43", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "In both Red and Urdas, the issue was whether the officer had reasonably assessed the evidence, including the affidavits of desistance. In Red, the Court concluded that given the affidavit of desistance, the officer needed to provide a greater explanation of the conclusion that an offence had been committed. In Urdas the officer did provide an adequate explanation and assessment of the evidence. Both cases therefore apply the same approach, which is consistent with Arevalo Pineda, namely that the withdrawal of charges is important, but not determinative, and that a reasonable decision must explain why the evidence supports a conclusion of inadmissibility despite the dismissal of charges and any affidavit withdrawing allegations. Ultimately, the question under paragraph 36(1)(c) remains whether there are objectively reasonable grounds to believe, based on compelling and credible information, that acts were committed which constitute an offence falling within that provision: Mugesera at para 114. The withdrawal of charges associated with the acts in the foreign jurisdiction is relevant evidence suggesting an offence may not have been committed, but it is not determinative.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-25", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 44–45", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Here, the visa officer appears to recognize that their role was to “thoroughly review the circumstances that led to the filing of the charge,” including the evidence submitted. However, despite this statement, in my assessment they did not undertake such a thorough review. As a result, neither Ms. Garcia nor the Court are able to assess why the visa officer accepted that Mr. Humiwat’s original evidence remained sufficiently credible and compelling to conclude there were reasonable grounds to believe Mr. Ballesteros had committed acts that would be an offence in Canada, despite the witness having stated that their evidence would exonerate Mr. Ballesteros, and despite Mr. Ballesteros’ direct evidence to the contrary. Without such an assessment of the evidence, the decision lacks the justification, transparency, and intelligibility of a reasonable decision: Vavilov at paras 86, 99, 133.\n\nMs. Garcia also argues that the visa officer’s decision was unreasonable because it failed to conduct an “equivalency” analysis between the Philippine and Canadian offences in accordance with the Federal Court of Appeal’s decision in Hill v Canada (Minister of Employment and Immigration), [1987] FCJ No 47, 1 Imm LR (2d) 1 (CA). While I need not determine this argument given my conclusions above, I believe it worth discussion in light of the parties’ arguments on the issue.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-26", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 46–47", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "In Hill, the Federal Court of Appeal set out three ways in which an officer may conduct an “equivalency” analysis to determine whether a foreign offence “would constitute an offence” in Canada: (i) by comparing the precise wording in each statute to determine the essential ingredients of the respective offences; (ii) by examining the evidence adduced before the adjudicator to ascertain whether the evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings; or (iii) a combination of (i) and (ii).\n\nIn the present case, the visa officer did not undertake a comparison between the essential elements of the “frustrated homicide” offence with which Mr. Ballesteros was charged in the Philippines and the assault causing bodily harm offence in Canada. Ms. Garcia argues that an officer must at least describe the constituent elements of the Canadian and foreign offences, with reference to applicable provisions: Nshogoza v Canada (Citizenship and Immigration), 2015 FC 1211 at paras 27–31. Relying on Justice Diner’s decision in Liberal, she argues that mere reference to the provisions followed by a brief statement regarding their equivalence is not a reasonable analysis: Liberal v Canada (Citizenship and Immigration), 2017 FC 173 at paras 28–32.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-27", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 48–50", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "In my view, it is relevant to note that Hill, Nshogoza and Liberal, as well as the cases they rely on, were decided in the context of paragraph 36(1)(b) of the IRPA or its predecessor, as the applicant in each case had been convicted of a foreign offence: Nshogoza at para 1; Liberal at para 1; see also Li at paras 2–3; Brannson v Canada (Minister of Employment and Immigration), [1981] 2 FC 141 (CA) at pp 142–143; Kathirgamathamby v Canada (Citizenship and Immigration), 2013 FC 811 at paras 1, 24.\n\nAs set out above, paragraph 36(1)(b) is triggered where a party has been convicted of an offence outside Canada that, if committed here, would be an offence punishable by a maximum term of imprisonment of at least 10 years. This requires an assessment of whether the offence of which the individual was convicted outside Canada would also constitute an offence in Canada. This engages the equivalency question addressed in Hill.\n\nThe analysis under paragraph 36(1)(c) of the IRPA, however, pertains not to a conviction outside Canada or even a charge, but to an act committed by the individual. The paragraph has two requirements. First, the act must be “an offence” where it was committed. Second, the act must constitute an offence punishable by a maximum term of imprisonment of at least 10 years, if it were committed in Canada. Unlike paragraph 36(1)(b), the paragraph does not on its face require that there be any equivalence between the offences in the two jurisdictions; simply that the act be “an offence” where it was committed, and constitute “an offence” with a particular punishment in Canada.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-28", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 51–52", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "This difference has led this Court to question the applicability of the equivalency analysis to paragraph 36(1)(c): Victor v Canada (Public Safety and Emergency Preparedness), 2013 FC 979 at paras 35–37; Nguesso v Canada (Citizenship and Immigration), 2015 FC 879 at paras 208–210. Nonetheless, this Court has also held in a number of cases that paragraph 36(1)(c) does trigger the Hill equivalency analysis: Pardhan v Canada (Citizenship and Immigration), 2007 FC 756 at paras 9–10; Somal v Canada (Citizenship and Immigration), 2014 FC 891 at para 19; Singh v Canada (Citizenship and Immigration), 2019 FC 946 at paras 16–17; Cruz v Canada (Citizenship and Immigration), 2020 FC 455 at paras 42–43.\n\nIn my view, the reasoning in Victor and Nguesso regarding the applicability of the Hill equivalency analysis to paragraph 36(1)(c) is persuasive. In any event, as Justice Roy noted in Victor, Hill sets out three alternative methods that may be used in the analysis, and to the extent that the Hill analysis may be necessary under paragraph 36(1)(c), the second Hill method seems “particularly advisable”: Victor at para 45. To this, I would add the observation that if applying the second Hill method in the context of paragraph 36(1)(c), the evidence in question may not have been “adduced before the adjudicator” or “proven in the foreign proceedings,” since no conviction is necessary under the section.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-29", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 53–55", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The Minister argues that the visa officer did undertake an adequate examination of whether the essential elements of the Canadian offence had been established on the evidence, and thereby followed the second Hill method. While I have concluded above that the visa officer’s analysis of the evidence and the elements was not reasonable, I cannot conclude that the decision was also unreasonable because it failed to adequately assess equivalency between the Philippine offence for which Mr. Ballesteros was charged and the Canadian offence of assault causing bodily harm.\n\nMs. Garcia argues that in addition to being unreasonable, it was unfair for the visa officer to rely on the “common practice to settle cases outside of the court” as a reason to discount the Affidavit of Desistance. She argues the visa officer apparently relied on extrinsic sources regarding the workings of the criminal system in the Philippines without putting that information or those issues to Ms. Garcia to allow her to respond with submissions or evidence. The Minister argues that Ms. Garcia was given the opportunity to address the overall criminality finding through the issuance of the procedural fairness letter, and that the visa officer is entitled to rely on specialized localized information regarding the country in which they work: Habte v Canada (Citizenship and Immigration), 2019 FC 327 at paras 23, 32, 35.\n\nWhile the duty of procedural fairness owed by visa officers generally tends to be at the lower end of the spectrum, this Court has recognized that decisions that involve inadmissibility invoke a greater degree of procedural fairness: Nguesso at paras 65–66. In my view, the officer did not meet the duty of fairness in this case.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-30", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 56–57", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "While a visa officer’s expertise and knowledge is central to their decision making, this does not resolve the issue of whether a visa officer has an obligation in a particular case to raise an aspect of that specialized knowledge before rendering a decision based on it. This Court has recognized that the rules of procedural fairness require that in some instances, such information or evidence must be disclosed: Al Hasan v Canada (Citizenship and Immigration), 2019 FC 1155 at paras 10–11; Nguyen v Canada (Citizenship and Immigration), 2019 FC 439 at para 28. The issue is whether “meaningful facts essential or potentially crucial to the decision” were relied upon without the applicant having been given an opportunity to comment on them: Nguyen at para 28, quoting Yang v Canada (Minister of Citizenship and Immigration), 2013 FC 20 at para 17.\n\nIn the present case, it is clear that the role of settlement and affidavits of desistance in the Philippine criminal justice system was a matter “essential or potentially crucial” to the visa officer’s decision. Indeed, it was the material focus of their analysis of Mr. Ballesteros’ admissibility. Yet neither the visa officer’s understanding that “it is common practice to settle cases” because of the lengthy trial process, nor their understanding that affidavits of desistance are simply a “workaround” arising from the terms of settlement was put to Ms. Garcia for comment in the fairness letter. In my view, it was unfair for the officer to rely on this information in this context, particularly where there was no evidence of a settlement, and where the visa officer’s understanding or information directly contradicted Mr. Ballesteros’ evidence that the withdrawal arose from Mr. Humiwat’s realization that he was at fault.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-31", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 58–59", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The application for judicial review is therefore allowed, and Ms. Garcia’s application is referred back to a different officer for redetermination.\n\nNeither party proposed a question for certification. I agree that none arises. JUDGMENT IN IMM-5235-19 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The visa officer’s decision is set aside and Ms. Garcia’s application for permanent residence is returned for re-determination by a different officer. “Nicholas McHaffie” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5235-19 STYLE OF CAUSE: LOREBETH GARCIA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION HEARING HELD BY VIDEOCONFERENCE ON SEPTEMBER 9, 2020 FROM OTTAWA, ONTARIO (COURT) AND CALGARY, ALBERTA (PARTIES) JUDGMENT AND REASONS: MCHAFFIE J. DATED: February 11, 2021 APPEARANCES: Sania Chaudhry For The Applicant Meenu Ahluwalia For The Respondent SOLICITORS OF RECORD: Stewart Sharma Harsanyi Barristers and Solicitors Calgary, Alberta For The ApplicantS Attorney General of Canada Calgary, Alberta For The Respondent", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-483303-1", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 1–4", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The applicant is a citizen and resident of India. In or around late May 2019, she applied to the Migration Section of the Consulate General of Canada in Chandigarh, India, for a Temporary Resident Visa [TRV] so that she could visit her daughter in Canada. In a decision dated August 16, 2019, a visa officer refused the application because the applicant had not established that she would leave Canada at the end of her authorized stay and because she had misrepresented information in her TRV application. As a result of the finding of misrepresentation, the applicant is inadmissible to Canada for five years under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].\n\nThe applicant has applied for judicial review of this decision on the basis that it was made in breach of the requirements of procedural fairness.\n\nThe applicant originally asked that the officer’s decision be set aside and that the matter be remitted to another decision maker for a redetermination of the TRV application. However, the timeframe for the applicant’s proposed trip to Canada is long passed. At the hearing of this application, the applicant’s counsel acknowledged that the main concern was the misrepresentation determination and the five-year period of inadmissibility it entails.\n\nFor the reasons that follow, I agree with the applicant that the decision was made in breach of the requirements of procedural fairness. This application will therefore be allowed and the August 16, 2019, decision (including the finding of misrepresentation) will be set aside. No other relief is requested or necessary.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-2", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 5–8", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The applicant applied in or around late May 2019 for a TRV to permit her to visit her daughter in Canada between June 15 and 30, 2019. The applicant’s daughter is a permanent resident of Canada who lives in Saint-Laurent, Quebec. The applicant’s mother (who is also a citizen of India) wished to make the trip as well and was included on the TRV application.\n\nOn June 28, 2019, the Migration Section of the Canadian Consulate in Chandigarh sent an email to the applicant’s daughter’s email address. (That address had been given as the applicant’s contact email on the TRV application.) The subject line of the email indicated “PFL for Swaranjit Kaur.” (“PFL” is a commonly used acronym for “Procedural Fairness Letter.”) The body of the email stated: “An important communication (attached) regarding your application is being sent to you.”\n\nThe Certified Tribunal Record [CTR] prepared for this application for judicial review by the Consulate General of Canada in Chandigarh does not include a copy of a procedural fairness letter dated on or around June 28, 2019, nor does it include any notes from the Global Case Management System [GCMS] pertaining to any such letter. The GCMS notes simply indicate that on June 28, 2019, a procedural fairness letter was sent to the applicant’s daughter’s email address.\n\nAt some point (the date is not provided in the record on this application), the applicant’s daughter sent a communication to Immigration, Refugees and Citizenship Canada [IRCC] stating that she had received the June 28, 2019, email from the Migration Section but there was no attachment. It appears that this message to IRCC reached the Canadian Consulate in Chandigarh on July 25, 2019.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-3", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 9–14", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The GCMS notes indicate that the procedural fairness letter was “resent” on July 25, 2019. A letter of that date is included in the record.\n\nIn this letter, an unidentified officer notes that under subsection 16(1) of the IRPA, a person who makes an application “must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.” The officer then states that they were concerned with the authenticity of the following, which you have provided in support of your application: On the current application form, you have not declared being unlawfully present for 365 days or more within 10 years in the United States. According to information in our records, you were unlawfully present for 365 days or more within 10 years in the United States.\n\nThis “information” concerning the applicant’s alleged unlawful presence in the United States is not otherwise described in the letter. There is nothing in the CTR to indicate what gave rise to this allegation.\n\nThe officer invited the applicant to respond to the information set out in the July 25, 2019, letter. If no response was received by the deadline specified in the letter (August 9, 2019), the application for a TRV would be refused.\n\nThe officer also noted that if it is found that the applicant “engaged in misrepresentation” in submitting her TRV application, she may be found inadmissible under paragraph 40(1)(a) of the IRPA. Such a finding would render her inadmissible to Canada for a period of five years.\n\nWith her daughter’s assistance, the applicant retained a Canadian lawyer in Montreal (not Mr. Chalk) to represent her in providing a response to the July 25, 2019, letter.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-4", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 15–18", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "On August 5, 2019, the lawyer emailed the Migration Section explaining that she had only recently been retained and was requesting an extension of time to respond to the July 25, 2019, letter.\n\nOn August 6, 2019, an officer with the Migration Section replied by email and granted an extension of seven days (i.e. to August 13, 2019) to provide a response. The officer also set out the following bullet points in the email, presumably to explain why only a relatively short extension was being granted: ● The applicant has been provided with ample time to respond to our concerns. ● The applicant provided an email address which we used [. . .] so there is no reason the applicant would not have been aware of our concerns and been able to respond in a timely manner. We resent the letter on 25th July giving 10 days to respond. ● The facts are clear regarding what was not disclosed on the original application – the applicant was asked in the application ‘Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory’ – to which the applicant indicated NO – which was not true.\n\nAlthough the officer does not say so expressly, there is no issue that the specific question to which the officer is referring in the last bullet point is Question 2(b) under Background Information in the Application for Visitor Visa (Temporary Resident Visa) form. It asks: “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?” As the officer notes, the applicant answered “No” to this question on her original TRV application.\n\nOn August 12, 2019, the applicant’s lawyer emailed a letter and supporting documents to the Canadian Consulate.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-5", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 19–23", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "In response to the specific allegation in the July 25, 2019, letter concerning the applicant not disclosing having been unlawfully present in the United States, the applicant’s lawyer wrote that she “can confirm that [the applicant] neither visited nor overstayed at [sic] the USA in the last 10 years.”\n\nHowever, the applicant’s lawyer then went on to state that there were three “mistakes” in the TRV application. These mistakes were made because an “unauthorized” representative in India had prepared the TRV application for the applicant, the applicant had answered truthfully all the questions the representative asked her, but the representative had not translated some of the questions on the application properly.\n\nThe applicant’s lawyer described the mistakes in the TRV application as follows.\n\nFirst, in response to the question “Have you previously been married or in a common law relationship?”, the applicant had answered “Yes” and provided the name of her late husband, who had passed away in 2008. The lawyer wrote that the correct answer is “No” because the applicant had only been married once, to her late husband. (In response to the immediately preceding question asking her current marital status, the applicant had stated “widowed”.)\n\nSecond, in response to the question “Are you able to communicate in English and/or French?”, the applicant had answered “English” when the correct answer is “No”. (The applicant had stated in her application that her mother tongue is Punjabi.)", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-6", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "para 24", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "Third, in response to the question “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?”, the applicant had answered “No” when the correct answer is “Yes”. The lawyer explained this mistake as follows (sic throughout): Although Madame Swaranjit Kaur was never denied entry or ordered to leave Canada or any other country, but she was denied a visa to the USA on 2018 because when she was visiting the USA between 2006 and 2008, she has lost her Indian passport and then left the USA without her lost Indian passport, which caused her a delay over 6 month in USA for her to be able to arrange for an alternative (lesser passer) Indian travel document (Indian Landing paper) to allow her to board a plane to go back to India on June 2008. [Here the lawyer makes reference to an attached document. From the list of attachments provided with the letter, it would appear to be a “report of lost passport.” For some reason, this document was not included in the record on this application for judicial review.] The reason why this question was answered no, because the unauthorized representative told her that the question is only asking about Canada: “if been refused a visa or permit, denied entry or ordered to leave Canada” in the last 10 years, without translating “or any other country or territory.” Yet she told him that she was refused a visitor visa to the USA on 2018, but he told her that the question is only about Canada.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-7", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 25–27", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The applicant’s lawyer went on to submit that the applicant had not knowingly provided false information in her application. Rather, she had made innocent mistakes. The lawyer attributed the mistakes in the application to the failure of the representative to translate the questions on the application properly, to the applicant’s inability to read and understand the application form that had been completed in English, to the applicant’s age (she was born in 1959), to the applicant’s health (she suffered from a specified medical condition that caused pain and fatigue), and to the passage of more than 11 years “since the event.” (It is not entirely clear what event the lawyer is referring to but it appears to be the applicant’s departure from the United States in June 2008.)\n\nAs set out in the decision letter dated August 16, 2019, the TRV application was refused for two reasons.\n\nFirst, the officer was not satisfied that the applicant would leave Canada at the end of her stay as a temporary resident, as required by paragraph 179(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227. This finding was based on: the applicant’s family ties in Canada and in India; the purpose of the applicant’s visit to Canada; and the applicant’s personal assets and financial status.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-8", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 28–31", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "Second, the officer was not satisfied that the applicant had answered all the questions in her TRV application truthfully, as required by subsection 16(1) of the IRPA. The officer wrote: Specifically, I am not satisfied that the following information is truthful: You misrepresented previous US refusals which could have induced an error in [the] administration of the Act in that you may have been issued a TRV. Application is clear in that it asks “have you EVER been refused…any country” [emphasis in original].\n\nThe decision letter does not mention the applicant’s alleged omission of her having been unlawfully present in the United States, as set out in the July 25, 2019, procedural fairness letter.\n\nThe officer concludes the decision letter by stating that the applicant had been found inadmissible to Canada in accordance with paragraph 40(1)(a) of the IRPA for, directly or indirectly, misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. In accordance with paragraph 40(2)(a) of the IRPA, the applicant will remain inadmissible for a period of five years from the date of the letter.\n\nThe officer’s GCMS notes shed some additional light on the basis of the officer’s misrepresentation finding.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-9", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 32–34", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "In the officer’s view, the TRV application “is clear in what is being asked, applicant has signed it that all is truthful and correct, applicant not only did not disclose US visa refusals and the problems in the US in 2008 – but she also did not disclose [her medical condition]. Having had so much trouble in the US previously it is reasonable that the applicant would either make sure all is done correctly to avoid further problems – OR – purposefully not disclose refusals that might affect this application” [original emphasis]. Further, the applicant is responsible for the consequences of having chosen to be assisted by an unauthorized representative.\n\nThe officer was not persuaded by the explanations offered by the applicant’s lawyer for why incorrect information had been included on the TRV application. The officer did not accept that the applicant did not know what she was signing or fully understand the application. The officer therefore found that the applicant is inadmissible to Canada under paragraph 40(1)(a) of the IRPA due to misrepresentation regarding the US visa refusals and rejected the application accordingly.\n\nNotably, while the officer alludes to the applicant’s “problems” in the United States in 2008 (i.e. the delay in leaving because of the loss of her Indian passport), there is no specific finding in the GCMS notes in relation to the concern that had been expressed in the July 25, 2019, letter – namely, that the applicant had been unlawfully present in the United States for 365 days or more within 10 years and that she had failed to disclose this.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-10", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 35–36", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "There is no dispute in the present case about how a reviewing court should determine whether there has been a breach of the requirements of procedural fairness. The court must conduct its own analysis and provide what it judges to be the right answer to the question of whether the process the decision maker followed satisfied the level of fairness required in all of the circumstances. This is functionally the same as applying the correctness standard of review: see Dunsmuir v New Brunswick, 2008 SCC 9 at paras 34 and 50; Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 54; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Canadian Pacific Railway Co v Canada (Attorney General), 2018 FCA 69 at paras 33-56; and Elson v Canada (Attorney General), 2019 FCA 27 at para 31.\n\nIn Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada held (at para 22) that “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” Further, the values underlying the duty of fairness “relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision” (at para 28).", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-11", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 37–38", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The common law duty of procedural fairness is “flexible and variable” (Baker at para 22). Several factors must be considered in determining what is required in the specific context of a given case, including: (1) the nature of the decision being made; (2) the nature of the statutory scheme under which the decision is made; (3) the importance of the decision to the individual(s) affected; (4) the legitimate expectations of the party challenging the decision; and (5) the procedures followed by the decision maker itself and its institutional constraints (Baker at paras 21-28).\n\nApplying these considerations, courts have consistently found that in visa applications the requirements of procedural fairness fall on the low end of the spectrum (Sepehri v Canada (Citizenship and Immigration), 2007 FC 1217 at para 3; Asl v Canada (Citizenship and Immigration), 2016 FC 1006 at para 23). While an applicant must be afforded a fair process by the visa officer, what is required for the process to be fair is attenuated by the fact that generally what is at issue is whether the applicant will be permitted to visit, study in, or move to Canada – privileges accorded to foreign nationals by the IRPA and related regulations in specified circumstances.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-12", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "para 39", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "Even so, procedural fairness requires that an applicant for a visa have an opportunity to participate meaningfully in the application process. Consequently, the duty of procedural fairness can require that an applicant be given an opportunity to respond to a decision maker’s concerns when those concerns go beyond simply whether the legislation or related requirements are met on the face of the application (Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24). When, for example, the applicant may be unaware of the existence or the basis of the concern, procedural fairness may require prior notice of the concern before a decision is made so that the applicant has an opportunity to try to disabuse the officer of the concern. See Talpur v Canada (Citizenship and Immigration), 2012 FC 25 at para 21; Mohammed v Canada (Immigration, Refugees and Citizenship), 2019 FC 326 at paras 25-26; and Bui v Canada (Citizenship and Immigration), 2019 FC 440 at para 27. While these cases all concerned applications for permanent resident visas, in my view the principles they stand for are equally applicable to applications for temporary resident visas (cf. Kong v Canada (Citizenship and Immigration), 2017 FC 1183 at paras 22-27). Where the concern relates to misrepresentation, the importance of having a meaningful opportunity to meet it is even more evident given the potential consequences of a finding of misrepresentation: see Toki v Canada (Immigration, Refugees and Citizenship), 2017 FC 606 at para 17, and Ntaisi v Canada (Citizenship and Immigration), 2018 CanLII 73079 (FC) at para 10.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-13", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 40–42", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "In the present case, the applicant advances two principal arguments. First, the procedural fairness communications she received – the July 25, 2019, letter and the August 6, 2019, email – were insufficient because they did not inform her of the officer’s specific concerns. Second, since the applicant’s response to these communications evidently raised additional concerns for the officer, the officer was required to put these new concerns to the applicant in another procedural fairness letter before making a decision.\n\nI agree with the applicant’s first argument. Since this is sufficient to dispose of this application, it is not necessary to address her second argument.\n\nIt follows from the principles cited above that, when a procedural fairness letter has been sent, a functional approach should be taken to assessing its adequacy. The purpose of a procedural fairness letter “is to provide enough information to an applicant that a meaningful answer can be supplied” (Ntaisi at para 6). Thus, the question is: Does the letter inform the affected party of the decision maker’s concerns? To serve this purpose, the letter must state more than general concerns. It must state the decision maker’s concerns with sufficient clarity and particularity so that the affected party has a meaningful opportunity to address them. See AB v Canada (Citizenship and Immigration), 2013 FC 134 at paras 53-54, and Toki at para 25.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-14", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 43–44", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The July 25, 2019, letter states that the officer who wrote it had a concern with respect to the “authenticity” of certain information the applicant had provided in connection with her TRV application, specifically: On the current application form, you have not declared being unlawfully present for 365 days or more within 10 years in the United States. According to information in our records, you were unlawfully present for 365 days or more within 10 years in the United States.\n\nWhatever the concern was that had given rise to the July 25, 2019, letter, it is expressed confusingly at best. It is not at all clear why it is a concern about “authenticity”, what exactly the applicant should have declared, or where she should have done so on the TRV application. Further, the letter is ambiguous. Is it referring to the ten year period prior to the TRV application (as the applicant and her lawyer evidently thought) or some other ten year period? If it is the latter, which ten year period? According to the applicant, the events relating to the loss of her Indian passport while she was visiting the United States occurred more than ten years earlier and so the allegation in the July 25, 2019, letter (as she understood it) was mistaken. There is no way to tell whether the July 25, 2019, letter is referring to these events or to something else.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-15", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 45–48", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "While these are all serious problems, it is not necessary to come to a final determination about the adequacy of the July 25, 2019, letter. This is because, as I read the decision letter and the officer’s GCMS notes, this alleged non-disclosure does not figure much, if at all, in the final decision. As noted above, the officer who made the decision does not make any findings one way or the other about whatever it was that that letter was referring to. Rather, the principal concern was that the applicant had been refused a US visa twice in 2010 and she had not disclosed this in response to Question 2(b).\n\nTo repeat for ease of reference, the August 6, 2019, email expressed the following concern: The facts are clear regarding what was not disclosed on the original application – the applicant was asked in the application ‘Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory’ – to which the applicant indicated NO – which was not true.\n\nBoth on its face and in light of the final decision, this email appears to be expressing a different concern than the one expressed in the July 25, 2019, letter. Whether the requirements of procedural fairness were met or not thus turns on whether the email informed the applicant of the concerns of the officer who ultimately decided to reject the TRV application and to find the applicant inadmissible due to misrepresentation.\n\nBy way of further context, it appears from the GCMS notes that the officer who made the decision at issue sent the August 6, 2019, email but a different officer had prepared the July 25, 2019, letter.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-16", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 49–52", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The respondent argues that it was sufficient for the officer simply to alert the applicant that there was a concern that her answer to Question 2(b) on the application form was false. Since the applicant knows her own travel history, she would know what the officer was referring to in the email. Whatever might have given rise to the original procedural fairness letter, it is clear from the decision that the officer’s concern was with respect to the applicant’s failure to disclose previous US visa refusals. Since the applicant would have known about those refusals, there was no breach of procedural fairness despite the fact that the officer did not refer to them specifically in the email.\n\nI do not agree.\n\nEven assuming perfect recollection of her travel history on the part of the applicant, the respondent’s argument presumes that the information the officer was relying on is accurate. However, this may be the very point in issue when a concern about misrepresentation arises. One cannot be faulted for failing to disclose something that is not, in fact, the case.\n\nThe officer who made the final decision evidently believed that the applicant had been refused a US visa twice in 2010. The grounds for that belief do not appear in the record. There is nothing before me to suggest that the officer could not have disclosed this specific concern to the applicant in the August 6, 2019, email and invited a response. Because the officer did not do so, the officer and the applicant ended up at cross-purposes.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-17", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 53–55", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "In the response prepared by her lawyer, the applicant disclosed that she had been refused a US visa in 2018 and offered an explanation for why it was not mentioned in her TRV application: the applicant had told her representative about it but he said the question only concerned Canadian visa refusals. There is no indication in the record that the officer was even aware of this refusal before the applicant disclosed it in her procedural fairness response. Moreover, it is not clear how, if at all, this particular omission from the TRV application figures in the officer’s misrepresentation determination. While the applicant acknowledged having been refused a US visa once (in 2018), this alone cannot be the basis of the misrepresentation finding. This is because, in the decision letter and the GCMS notes, the officer consistently refers to visa refusals – that is, to more than one – when describing the applicant’s misrepresentation.\n\nOn the other hand, it is clear that the two alleged 2010 visa refusals figure significantly in the decision. The officer mentions them specifically in the decision letter and in the GCMS notes. However, the applicant did not have a meaningful opportunity to address this allegation because she was never advised that this is what had given rise to the officer’s concern about misrepresentation in the first place.\n\nIn sum, I am not satisfied that the August 6, 2019, email communicated the officer’s concern about misrepresentation with sufficient clarity and particularity to provide the applicant with a meaningful opportunity to respond. Consequently, the decision on the TRV application was made in breach of the requirements of procedural fairness.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-18", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 56–57", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "For these reasons, the application for judicial review will be allowed. As noted above, the applicant does not seek reconsideration of her TRV application. She is content to have the decision dated August 16, 2019, (including the finding of misrepresentation) set aside. I will so order.\n\nThe parties have not suggested any serious questions of general importance for certification under paragraph 74(d) of the IRPA. I agree that none arise. JUDGMENT IN IMM-5627-19 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The decision dated August 16, 2019, is set aside. No question of general importance is stated. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5627-19 STYLE OF CAUSE: SWARANJIT KAUR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA HEARING HELD BY VIDEOCONFERENCE ON JULY 7, 2020 FROM OTTAWA, ONTARIO (COURT) AND MONTREAL, QUEBEC (PARTIES) JUDGMENT AND REASONS: NORRIS J. DATED: August 4, 2020 APPEARANCES: David Chalk For The Applicant Jocelyne Murphy For The Respondent SOLICITORS OF RECORD: Chalk Immigration Montreal, Quebec For The Applicant Attorney General of Canada Montreal, Quebec For The Respondent", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-56900-1", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 1", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "The Applicant, Ms. Thi Ngoc Nguyen, seeks to challenge a decision taken under section 133 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (“the Act”), whereby the Minister of Public Safety and Emergency Preparedness (“the Minister”) requires payment of a specified amount of money before returning a seized diamond ring. The Applicant’s arguments are all directed at challenging the decision under section 131 of the Act whereby the Minister found that Ms. Nguyen had contravened s. 12 of the Act by failing to report an alleged importation of a ring. Subsection 131(3) of the Act is a privative clause within the Customs Act that requires decisions made pursuant to s. 131 of the Act be subject to review only as described in s.135(1) of the Act. Subsection 135(1) of the Act requires that a Minister’s decision made under s.131 of the Act be appealed by way of an action. In other words, a decision made pursuant s. 131 of the Act must be challenged by way of action and not by way of application for judicial review.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-2", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 2–3", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "As Justice Andrew MacKay stated in ACL Canada Inc. v. Canada (Minister of National Revenue - M.N.R.), (1993) 68 F.T.R. 180, 107 D.L.R. (4th) 736 (F.C.T.D.): [54] In my view, Parliament has insulated from appeal the penalty imposed in the event there is found to be a contravention of the Act. That may seem surprising since the penalty will often be the primary concern of the person whose goods are seized under the Act or who is served with a notice and demand for payment under s.124. Yet that simply carries on a long-standing regime under Customs Acts of the past, at least in relation to goods seized, for the goods are forfeited to Her Majesty at the time of the contravention of the Act (s. 122), and terms of any remission, where the Act or regulations are contravened, have been considered beyond the role of the Court to review. (Lawson et al. v. The Queen, [1980] 1 F.C. 767 F.C.T.D. (per Mahoney J. at 772)). [Underlined by the court]\n\nA technical provision with a privative clause presents a conundrum to judicial review, when it does not result in a conclusion that would be reached due to factual evidence! In such an instance, the law is followed although justice may be undone. In the case at bar, this has occurred due to a series of circumstances which include language barrier challenges for an applicant, misinterpretation of significant evidence by first instance decision-makers and jurisprudence pointing at the frustration of judges for a period of years (Dokaj v. Canada (Minister of National Revenue - M.N.R.), 2005 FC 1437, [2006] 2 F.C.R. 152; ACL Canada, above, at para. 56, see also below at paragraph 22 of this Decision).", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-3", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 4–5", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "An iron-clad privative clause can only be interpreted as it is and nothing more, if a court recognizes it is but a court, and nothing more; nevertheless, the subject-matter can then be reviewed by the executive branch for eventual formulation by the legislative branch so that justice can prevail, where in rare exceptions, cases of honest citizens and residents of Canada fall through the cracks. Such is the situation in this case, wherein, the court understands its limitations under the separation of powers and the legislation is clear on given points under which a decision would be overturned, if it ruled differently. The court acknowledges even if it were inclined to rule otherwise, that under constitutional supremacy, it is not for the court, itself, to write the law but rather it is for the two other branches of government to remedy the situation if they so see fit.\n\nThe fact a dialogue can ensue among the three branches of government through jurisprudence, represents, in and of itself, the measure of health in a democracy. The spirit of the law attempts to be at one with justice, as a synchronized whole, where the three branches of government, although working separately, set matters right under the supremacy of that constitutional framework, each within its own jurisdiction. II. JUDICIAL PROCEDURE", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-4", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 6–9", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "This is an application for judicial review of a Ministerial decision dated August 7, 2008 (“the Decision”), which made two determinations. First, pursuant to s. 131 of the Act, the Minister found that Ms. Nguyen had contravened s. 12 of the Act. Having found a contravention of the Act, the Minister then determined pursuant to s. 133 of the Act that a ring under seizure would be returned to Mr. Nguyen upon receipt of the amount of $30,483.20, to be held as forfeit. III. BACKGROUND\n\nMs. Nguyen is a Canadian citizen who is originally from Vietnam, but who resided in Surrey, British Columbia at the time of the enforcement action. She was a mushroom farm worker but currently works as a manicurist.\n\nOn February 15, 2007, Ms. Nguyen left Canada for a visit to Vietnam. She took with her various clothing and jewellery, including a diamond ring (“the ring”), two other diamond rings (“the engagement and wedding rings”), and two pairs of earrings with clear stones (“the earrings”).\n\nAbout two weeks later, on March 2, 2007, Ms. Nguyen returned to Canada, bringing back all the jewellery which she had taken with her. In response to a question on her customs declaration form as to whether she was bringing into Canada items purchased or received abroad, she stated that she had nothing to declare. At the preliminary inspection point, she was referred to secondary inspection because of her difficulty communicating in English. A customs officer at the secondary inspection point opened Ms. Nguyen’s luggage. This second customs officer unfolded a light jacket/shirt and felt a small lump in its pocket. When the customs officer opened the pocket, she discovered Ms. Nguyen’s jewellery in a small jewellers’ plastic bag.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-5", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 10–12", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Ms. Nguyen provided an appraisal, an invoice, and a diamond grading report for the ring. The appraisal for the diamond in the ring was conducted by a gemological consultant in Vancouver on March 31, 2005. This appraisal suggested an insurance coverage of the diamond before its affixation to a gold ring at $124,800. The invoice was with respect to the cost of setting the diamond in a gold band. This invoice was issued by a jeweller located in Vancouver and was dated April 15, 2005. Finally, the diamond grading report was with respect to the diamond in the ring and was dated September 15, 2003 in Antwerp, Belgium.\n\nThe customs officer told Ms. Nguyen that the documents do not establish that the ring had been legally imported into Canada or that applicable duties and taxes had been paid.\n\nMs. Nguyen was unable to provide receipts for the purchase of any of her jewellery because the jewellery consisted of gifts from people with whom she was no longer in contact. She indicated to the customs officer that the engagement and wedding rings were given to her by her ex-husband while they both lived in Montreal. In her affidavit, she claims that her ex-husband gave her the gifts of earrings in 1994, and in 1997 he gave Ms. Nguyen the wedding and engagement rings. This jewellery is now over 10 years old. Ms. Nguyen was separated from her ex-husband in 1998 and they are not on speaking terms.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-6", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 13–16", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "She indicated to the customs officer that the ring was given to her in Vancouver as a gift from her boyfriend (Certified Record at pp. 2, 4-5). When asked what her boyfriend does for a living, she indicated that he owns a business in Hong Kong where he now lives (Certified Record at p. 4). In her affidavit, Ms. Nguyen confirmed that she was given the ring on Valentine’s Day in 2005 by her boyfriend in Vancouver. According to Ms. Nguyen, she was separated from her boyfriend by the end of 2006 and they are no longer in contact.\n\nNot satisfied, the customs officers seized the ring because Ms. Nguyen had not declared it on the customs forms as she allegedly was required to do. She also did not have receipts confirming when the jewellery was bought. The other jewellery was also kept in custody but was not seized; the customs officer believed that the other items may have been more than 10 years old; and, therefore, beyond the limitations period.\n\nAt the request of the Minister, GLS Gemlab Limited conducted an appraisal of the ring. Based on this appraisal, the Minister informed Ms. Nguyen by letter dated April 4, 2007, that the ring would be released upon payment of $30,483.20 in duties and an additional $5,681.31 in Provincial Sales Tax.\n\nMs. Nguyen duly requested the Minister to review the enforcement action. By letter dated June 22, 2007, Ms. Nguyen was informed that the Minister was reviewing the enforcement action which had been taken as Ms. Nguyen had not reported the alleged importation of the ring in contravention of s. 12 of the Act. IV. THE IMPUGNED DECISION", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-7", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Upon review of the enforcement action, the Minister’s delegate issued two determinations on August 7, 2007, as follows: After considering all of the circumstances, I have decided, under the provisions of section 131 of the Customs Act, that there has been a contravention of the Customs Act or the Regulations in respect of the goods that were seized. Under the provisions of section 133 of the Customs Act, the ring under seizure be returned to the appellant upon receipt of an amount $30,483.20 to be held as forfeit. If release of the goods is not taken on the foregoing terms, within 90 days from the date of this notice, they will be forfeited and disposed of. V. APPLICABLE LEGISLATION Report 12. (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. Time and manner of report (2) Goods shall be reported under subsection (1) at such time and in such manner as the Governor in Council may prescribe.", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-30", + "id": "fc-56900-8", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 59–60", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "The Supreme Court in Crevier was pre-occupied with the lack of any appeal from a decision of the Professions Tribunal to a Superior Court. Comparing to the legislative scheme at issue in this case, it is clear that the Supreme Court’s holding in Crevier would limit Parliament’s ability to completely insulate the CITT from any Superior Court review. In the Customs Act, Parliament has not attempted to do so. Instead, it has provided an appeal mechanism, and simply limited what can be appealed to questions of law. Similar to the Code of Civil Procedure at the time Crevier was decided, the Federal Courts Act makes clear that the traditional judicial review remedies provided for in that Act—injunction, certiorari, prohibition, etc.—are unavailable when a statutory appeal from an administrative decision is provided for: Federal Courts Act, s. 18.5.\n\nIn my view, Crevier supports the position that Parliament may restrict judicial review to questions of law. A statutory provision having this effect, such as section 68 of the Customs Act, meets any threshold established in Crevier. To hold otherwise would be to eliminate any possibility that Parliament could, via statute, restrict the ambit of judicial review of administrative action. What purpose would the specific provisions of the Customs Act, and many other federal statutes that restrict review, serve if recourse to the Courts could always be had on all issues under the general provisions of section 18 and section 28 of the Federal Courts Act?", - "current_to": "2021-08-05", + "text": "Who reports (3) Goods shall be reported under subsection (1) (a) in the case of goods in the actual possession of a person arriving in Canada, or that form part of the person’s baggage where the person and the person’s baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; (a.1) in the case of goods imported by courier or as mail, by the person who exported the goods to Canada; (b) in the case of goods, other than goods referred to in paragraph (a) or goods imported as mail, on board a conveyance arriving in Canada, by the person in charge of the conveyance; and (c) in any other case, by the person on behalf of whom the goods are imported. Goods returned to Canada (3.1) For greater certainty, for the purposes of the reporting of goods under subsection (1), the return of goods to Canada after they are taken out of Canada is an importation of those goods. Where goods are reported outside Canada (4) Subsection (1) does not apply in respect of goods that are reported in the manner prescribed under subsection (2) prior to importation at a customs office outside Canada unless an officer requires that the goods be reported again under subsection (1) after importation. […] Written report (6) Where goods are required by the regulations to be reported under subsection (1) in writing, they shall be reported in the prescribed form containing the prescribed information, or in such form containing such information as is satisfactory to the Minister. […] Déclaration 12.", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-31", + "id": "fc-56900-9", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 61–63", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "This is also why, in my view, the case of Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC], does not bind this panel into allowing a judicial review to proceed in this matter. In PSAC, the Federal Public Sector Labour Relations and Employment Board (the Board) argued that, by virtue of a privative clause found in its constituting statute, its decisions were not amenable to review for errors of law, erroneous findings of fact or any other departures from law: PSAC at paras. 10–12. This Court rejected that argument, holding that the Board’s decisions were reviewable for their reasonableness: PSAC at para. 34.\n\nThere are two factors that differentiate PSAC from this case. Firstly, the legislation at issue in PSAC did not provide for a statutory appeal, and only provided for a limited judicial review on the grounds of jurisdictional or procedural fairness issues, or fraud: PSAC at paras. 10–11. According to the Board, this meant that it could not be reviewed on matters of law.\n\nThere is of course, no such argument being made here. The CITT’s decisions are clearly reviewable for errors of law, and on a correctness basis. Thus the limits on the availability of judicial review being contemplated in this case are significantly more narrow than those argued for by the Board and rejected by this Court, in PSAC. I am not convinced that the reasoning and outcome in PSAC would have been the same had the Board’s statute provided for full review of its decisions on matters of law. I view the very different nature of the review mechanisms at issue in PSAC and in this case as sufficient to distinguish the cases.", - "current_to": "2021-08-05", + "text": "(1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions prévues par règlement, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. Modalités (2) La déclaration visée au paragraphe (1) est à faire selon les modalités de temps et de forme fixées par le gouverneur en conseil. Déclarant (3) Le déclarant visé au paragraphe (1) est, selon le cas : a) la personne ayant en sa possession effective ou parmi ses bagages des marchandises se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada ou, dans les circonstances réglementaires, le responsable du moyen de transport; a.1) l’exportateur de marchandises importées au Canada par messager ou comme courrier; b) le responsable du moyen de transport arrivé au Canada à bord duquel se trouvent d’autres marchandises que celles visées à l’alinéa a) ou importées comme courrier; c) la personne pour le compte de laquelle les marchandises sont importées. Marchandises qui reviennent au Canada (3.1) Il est entendu que le fait de faire entrer des marchandises au Canada après leur sortie du Canada est une importation aux fins de la déclaration de ces marchandises prévue au paragraphe (1). Exception : déclaration à l’étranger (4) Le paragraphe (1) ne s’applique qu’à la demande de l’agent aux marchandises déjà déclarées, conformément au paragraphe (2), dans un bureau de douane établi à l’extérieur du Canada. […] Déclaration écrite (6) Les déclarations de marchandises à faire, selon les règlements visés au paragraphe (1), par écrit sont à établir en la forme, ainsi qu’avec les renseignements, déterminés par le ministre ou satisfaisants pour lui.", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-32", + "id": "fc-56900-10", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 64–65", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "Were the cases not distinguishable, PSAC was nevertheless decided before the Supreme Court of Canada’s decision in Vavilov. As noted above, Vavilov explicitly required lower courts rethink their approach to dealing with statutory appeals, with a view to giving effect to legislative intent. In my view, this major change in the law since PSAC, a change which goes to the heart of the issue in this application, is sufficient to warrant this panel to treat the issue as a novel one, and not consider itself bound by the panel’s holding in PSAC.\n\nFurther, in apparent contrast to the dicta in PSAC, this Court, in recent decisions, found it lacked jurisdiction to review administrative decisions for factual and policy issues where the applicable statutes limited appeals to questions of law and jurisdiction: Emerson Milling at para. 26; Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 (WL Can) at paras. 69, 78 [Bell Canada].", - "current_to": "2021-08-05", + "text": "[…] Decision of the Minister 131. (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide (a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened; (b) in the case of a conveyance seized or in respect of which a notice was served under section 124 on the ground that it was made use of in respect of goods in respect of which this Act or the regulations were contravened, whether the conveyance was made use of in that way and whether the Act or the regulations were so contravened; or (c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply. (d) [Repealed, 2001, c. 25, s. 72] Exception (1.1) A person on whom a notice is served under section 130 may notify the Minister, in writing, that the person will not be furnishing evidence under that section and authorize the Minister to make a decision without delay in the matter. Notice of decision (2) The Minister shall, forthwith on making a decision under subsection (1), serve on the person who requested the decision a detailed written notice of the decision.", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-33", + "id": "fc-56900-11", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 66–67", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Judicial review (3) The Minister’s decision under subsection (1) is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by subsection 135(1). Décision du ministre 131. (1) Après l’expiration des trente jours visés au paragraphe 130(2), le ministre étudie, dans les meilleurs délais possible en l’espèce, les circonstances de l’affaire et décide si c’est valablement qu’a été retenu, selon le cas : a) le motif d’infraction à la présente loi ou à ses règlements pour justifier soit la saisie des marchandises ou des moyens de transport en cause, soit la signification à leur sujet de l’avis prévu à l’article 124; b) le motif d’utilisation des moyens de transport en cause dans le transport de marchandises ayant donné lieu à une infraction aux mêmes loi ou règlements, ou le motif de cette infraction, pour justifier soit la saisie de ces moyens de transport, soit la signification à leur sujet de l’avis prévu à l’article 124; c) le motif de non-conformité aux paragraphes 109.1(1) ou (2) ou à une disposition désignée en vertu du paragraphe 109.1(3) pour justifier l’établissement d’une pénalité en vertu de l’article 109.3, peu importe s’il y a réellement eu non-conformité. d) [Abrogé, 2001, ch. 25, art. 72] Exception (1.1) La personne à qui a été signifié un avis visé à l’article 130 peut aviser par écrit le ministre qu’elle ne produira pas de moyens de preuve en application de cet article et autoriser le ministre à rendre sans délai une décision sur la question. Avis de la décision (2) Dès qu’il a rendu sa décision, le ministre en signifie par écrit un avis détaillé à la personne qui en a fait la demande.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-12", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Recours judiciaire (3) La décision rendue par le ministre en vertu du paragraphe (1) n’est susceptible d’appel, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues au paragraphe 135(1). Where there is contravention 133. (1) Where the Minister decides, under paragraph 131(1)(a) or (b), that there has been a contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, and, in the case of a conveyance referred to in paragraph 131(1)(b), that it was used in the manner described in that paragraph, the Minister may, subject to such terms and conditions as the Minister may determine, (a) return the goods or conveyance on receipt of an amount of money of a value equal to an amount determined under subsection (2) or (3), as the case may be; (b) remit any portion of any money or security taken; and (c) where the Minister considers that insufficient money or security was taken or where no money or security was received, demand such amount of money as he considers sufficient, not exceeding an amount determined under subsection (4) or (5), as the case may be.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-13", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "[…] Return of goods under paragraph (1)(a) (2) Goods may be returned under paragraph (1)(a) on receipt of an amount of money of a value equal to (a) the aggregate of the value for duty of the goods and the amount of duties levied thereon, if any, calculated at the rates applicable thereto (i) at the time of seizure, if the goods have not been accounted for under subsection 32(1), (2) or (5) or if duties or additional duties have become due on the goods under paragraph 32.2(2)(b) in circumstances to which subsection 32.2(6) applies, or (ii) at the time the goods were accounted for under subsection 32(1), (2) or (5), in any other case; or (b) such lesser amount as the Minister may direct. […] Cas d’infraction 133. (1) Le ministre, s’il décide, en vertu des alinéas 131(1)a) ou b), que les motifs d’infraction et, dans le cas des moyens de transport visés à l’alinéa 131(1)b), que les motifs d’utilisation ont été valablement retenus, peut, aux conditions qu’il fixe : a) restituer les marchandises ou les moyens de transport sur réception du montant déterminé conformément au paragraphe (2) ou (3), selon le cas; b) restituer toute fraction des montants ou garanties reçus; c) réclamer, si nul montant n’a été versé ou nulle garantie donnée, ou s’il estime ces montant ou garantie insuffisants, le montant qu’il juge suffisant, à concurrence de celui déterminé conformément au paragraphe (4) ou (5), selon le cas.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-14", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "[…] Restitution des marchandises (2) La restitution visée à l’alinéa (1)a) peut, s’il s’agit de marchandises, s’effectuer sur réception : a) soit du total de leur valeur en douane et des droits éventuellement perçus sur elles, calculés au taux applicable : (i) au moment de la saisie, si elles n’ont pas fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), ou si elles sont passibles des droits ou droits supplémentaires prévus à l’alinéa 32.2(2)b) dans le cas visé au paragraphe 32.2(6), (ii) au moment où elles ont fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), dans les autres cas; b) soit du montant inférieur que le ministre ordonne. […] Federal Court 135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. Ordinary action (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. Cour fédérale 135. (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-15", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 17–19", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Action ordinaire (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions. VI. ISSUES\n\nTwo questions are raised: 1. Is the Applicant able to challenge in judicial review the Minister’s determination made pursuant s. 131 of the Act that the Applicant contravened s. 12 of the Act? 2. Was the Minister’s decision pursuant s. 133 of the Act requiring the Applicant to remit a certain monetary amount for the release of the seized ring unlawful? VII. ANALYSIS a. Is the Applicant able to challenge in judicial review the Minister’s determination made pursuant s. 131 of the Act that the Applicant contravened s. 12 of the Act?\n\nThe Applicant is challenging the Minister’s finding of a contravention of the Act made pursuant s. 131 of the Act of this application for judicial review. Subsection 131(3) of the Act is a privative clause within the Customs Act that requires decisions made pursuant to s. 131 of the Act be subject to review only as described in s. 135(1) of the Act. Subsection 135(1) of the Act requires that a Minister’s decision made under s. 131 of the Act be appealed by way of an action.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-16", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 20", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "No such statutory right of appeal exists with respect to Ministerial decisions taken under s. 133 of the Act. Section 133 of the Act provides that where the Minister finds under s. 131 of the Act that a contravention of the Act has occurred, the Minister may impose a penalty or other applicable remedial action such as the return of goods on receipt of an amount of money. Accordingly, a determination made pursuant s. 133 of the Act may often be dependent on a finding of a contravention of the Act. Nevertheless, the two decisions are separate and distinct, and must be challenged separately. The determination made pursuant to s. 131 of the Act in respect of a contravention of s. 12 of the Act may only be appealed by way of an action to this Court. Meanwhile, a determination made pursuant s. 133 of the Act regarding the release of the goods may be challenged only by way of an application for judicial review in accordance with s. 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-17", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 21", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "As Justice Carolyn Layden-Stevenson recognized in a case interpreting similarly structured legislation, “the result is one that is both awkward and inconvenient” (Dokaj, above, at para. 39). Indeed, Justice Andrew Mackay of this Court, in ACL Canada Inc., above, recommended that the bifurcated legislative scheme be amended by Parliament: [56] I note in passing that if my interpretation of the Act is correct, there is an anomalous situation presented for anyone seeking to question the Minister's decisions in relation to seizures and forfeitures. The Act provides for an appeal of a decision of the Minister on the issue of whether there has been a contravention of the Act or regulations and such an appeal may be made by way of an action in this Court within 90 days of notice of the decision. The exercise of discretion in imposing the penalty, like any other administrative discretion, even where there is a privative clause, is subject to judicial review in this Court, but since amendments to the Federal Court Act effective February 1, 1992, relief must be sought by an application for judicial review, not by an action, to be commenced within 30 days of the decision sought to be reviewed, unless the Court grants an extension of time to apply. The person affected by customs seizures and penalties can only be confused by the two remedial processes Parliament has now provided under the two statutes. Parliament might well consider whether both decisions of the Minister, under ss. 131 and 133, should be subject to review in a single proceeding, by way of an appeal or on application for judicial review.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-18", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 22", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "The interpretation of the Act, requiring that s. 131 determinations be appealed by an action has repeatedly been supported by this Court as proceedings by way of judicial review have not been able to address the evidence in such cases due to the technical language in the legislation with its privative clause (See Dokaj, above at para. 42; ACL Canada Inc., above, at paras. 52-56; Time Data Recorder International Ltd. v. Canada (Minister of National Revenue - M.N.R.), (1993) 66 F.T.R. 253, 42 A.C.W.S. (3d) 66 (F.C.T.D.) at para. 22 aff’d. (1997) 211 N.R. 229, 70 A.C.W.S. (3d) 819 (F.C.A.) at para. 21; He v. Canada (2000), 182 F.T.R. 85, 95 A.C.W.S. (3d) 82 (F.C.T.D.) at para. 11.) 2. Was the Minister’s decision pursuant s. 133 of the Act requiring the Applicant to remit a certain monetary amount for the release of the seized ring unlawful?", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-19", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 23–24", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "On judicial review, this court agrees with the position of the Respondent, as the court has no choice due to the legislation as specified. Ms. Nguyen has not shown that the determination by the Minister made pursuant s. 133 was unlawful. All of Ms. Nguyen’s evidence and argument was directed solely towards showing that she had not contravened s. 12 of the Act. As stated above, that inquiry cannot be made by this Court in an application for judicial review; it would have to be taken by means of an action within the current legislation; and, thus, the context for the court decision would be different. Ms. Nguyen has not provided any other evidence or argument in response to the Minister’s determination made pursuant to s. 133 of the Act regarding the release of the seized ring that could alter the decision bearing in mind its present context. Nevertheless, the court, in conclusion, fully acknowledges that although the factual evidence is overwhelmingly in Ms. Nguyen’s favour, the legislative provisions with the privative clause are so restrictive that the factual evidence, although fully considered, cannot make a difference under the legislative context in Ms. Nguyen’s case. VIII. CONCLUSION\n\nIn order to attempt to overturn the Minister’s determination pursuant to s. 131 of the Act that there has been a contravention of s. 12 of the Act, the Applicant would have to make an appeal by way of an action. The Applicant, by way of judicial review, has not been able to show that the Minister’s determination made pursuant s. 133 of the Act was unlawful.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-20", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 25–27", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "It is true that, in both those cases, the applicable legislation also provided for appeals to the Governor in Council: Canada Transportation Act, S.C. 1996, c. 10, s. 40; Telecommunications Act, S.C. 1993, c. 38, s. 12(1). The availability of this other mechanism for appeal played a part in this Court’s reasoning declining jurisdiction: Emerson Milling at para. 12; Bell Canada at paras. 48–50. However, I do not think that the Governor in Council review provided for in those schemes fulfills a factual review function. I am of the view that the validity of a statutory provision limiting appeals to this Court on questions of law is not conditional upon the availability of Governor in Council review for matters falling outside the scope of the appeal. As such, I do not see how this Court can review CITT decisions for issues of fact or mixed fact and law on an application for judicial review pursuant to the Federal Courts Act. In my view, subsection 67(3) and section 68 of the Customs Act preclude the possibility of such an application. While paragraph 28(1)(e) of the Federal Courts Act contemplates applications for judicial review of CITT decisions, as noted above, the CITT makes decisions pursuant to a variety of statutory authorities and some, such as the SIMA, do allow for judicial review. The Customs Act expressly does not. I would not disregard this expression of Parliament’s intent.\n\nGiven that Canada acknowledges that its second line of argument on the merits attacks the CITT’s application of the law to the facts, I see no need to deal comprehensively with that argument. Indeed, doing so would be engaging in the exact judicial review exercise I have just concluded this Court is precluded from conducting.", - "current_to": "2021-08-05", + "text": "Recognizing the related, but separate, nature of the s. 131 and s. 133 determinations, it is open to this Court to suspend a judicial review of a determination made pursuant s. 133 of the Act until an appeal of a determination made pursuant s. 131 of the Act. Justice Sean Harrington stated in Samson v. Canada (Attorney General), 2008 FC 557 that when an application for judicial review of a determination made pursuant s. 133 of the Act is made before an appeal of a determination of a contravention of the Act has taken place, the judicial review ought to be suspended: [5] This implies, therefore, that it is best to file an application for judicial review of a penalty even before a hearing is held deciding the grounds of the offence. Clearly, if it were determined that no offence was ever committed, the penalty would fall and the judicial review would become moot. In any event, the judicial review ought to be suspended pending a decision on the matter before the Court.\n\nIn this case, however, given that Ms. Nguyen has not initiated any appeal of the Minister’s determination made pursuant s. 133 of the Act, this court cannot exercise a discretion it does not have. The court cannot suspend an application for judicial review when no action has been initiated. The fact that no action was initiated due to the financial considerations of the Applicant, as was clearly specified by Ms. Nguyen’s counsel during his oral representations, cannot change the nature of the limitation of the court’s discretion.\n\nTherefore, the court has no choice but to interpret the legislation rather than to formulate it. As a result, the application for judicial review must be dismissed. IX. OBITER", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-34", + "id": "fc-56900-21", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 68–71", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 28–31", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "Given my conclusion that judicial review is unavailable outside of the statutory appeal mechanism provided for in the Customs Act, there is no need for me to address how a party might conduct both an appeal and an application for judicial review of the same decision. However, it is worth noting that if this Court was to accept the position of the parties and find that judicial review was available pursuant to sections 18 and 28 of the Federal Courts Act, under a separate and parallel application, it is clear that such a process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone. This would fly in the face of the intent of Parliament to simplify and expedite the review of the highly technical decisions of the CITT.\n\nThus, in my view, the only procedure by which this Court may review a CITT decision is an appeal made under section 68 of the Customs Act.\n\nI would dismiss the appeal, with costs. “D. G. Near” J.A. GLEASON J.A. (Concurring Reasons)\n\nI have had the opportunity of reading the reasons of my colleague, Near, J.A. in draft, and, while I concur in result, I arrive at my conclusion by a slightly different path. As is more fully articulated below, it is my view that a slightly broader range of factual determinations made by the CITT may be reviewed by this Court than my colleague would permit, although such review would require the filing of an application for judicial review. While this conclusion does not affect the result in this appeal, it is, in my opinion, nonetheless important to leave the door open to this sort of review, which might be determinative in a future case under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp) or another statute containing a privative clause.", - "current_to": "2021-08-05", + "text": "Due to the deference owed by this court under constitutional supremacy, as discussed in the introduction, it is outside of the procedural and technical legal framework of the decision which recognizes the restrictive language of the legislation, that a reckoning of the big picture can only be examined more fully in obiter subsequent to the decision itself.\n\nExceptional circumstances require an exceptional measure of care to ensure that no case falls through the cracks.\n\nIt is recognized due to the prescription period specified in the Customs Act, and, also, due to the high cost of actions before the court, an action is often not an option for applicants.\n\nA suggestion for the executive and legislative branches (as part of an indirect dialogue that exists between the three branches of government through jurisprudence) may be to consider that citizens or residents of Canada who are about to leave Canada, prior to departure, be more easily made aware that they are to make known for the purpose of customs officials any object of worth, leaving Canada on their person or in their luggage that they intend to bring back to Canada which may initiate questions in regard to customs duties on their return.", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-35", + "id": "fc-56900-22", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 72–73", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 32", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "That said, I reach the same conclusion as my colleague in terms of the disposition of this appeal as the slightly broader basis for factual review that I contemplate is not available in an appeal. Moreover, even if an application for judicial review had been filed, the sorts of factual errors alleged by the appellant in the instant case would provide no basis for intervention. Thus, like my colleague, I would dismiss this application for judicial review.\n\nI commence my analysis of these issues by noting that I agree that this Court’s decision in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 [Neptune] does not settle the issue of whether factual determinations of the CITT may be reviewed by this Court as the issue was not central to the determination in that case. The comments made on the issue in Neptune are accordingly non-binding obiter dicta. The present case is the first time this issue has been squarely before this Court in the context of the CITT, although a very similar issue was before the Court recently in Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC] in the context of federal labour tribunals, where this Court reached an opposite conclusion from that of my colleague.", - "current_to": "2021-08-05", + "text": "The case at bar may assist as an example on the basis of the evidence: customs officials appeared to have based themselves on the belief that Ms. Nguyen had obtained the ring in question in Hong Kong, whereas she consistently indicated that she had been given the ring in Vancouver. In its seizure synopsis, customs officials determined that the origin or country of purchase of the ring was in Hong Kong (Certified Record at p. 151). Moreover, in its reasons for decision, the Minister’s Delegate refers several times to how Ms. Nguyen had claimed to receive the ring as a gift from a her boyfriend in Hong Kong (Certified Record at pp. 21, 26). This loose language leaves as ambiguous whether the Minister’s Delegate believed that the ring had been given to Ms. Nguyen in Hong Kong, even though the evidence only points to the boyfriend as being a businessman from Hong Kong. As stated above, Ms. Nguyen consistently indicated that she had been given the ring in Vancouver. In the customs officer’s own narrative report, the customs officer reports that Ms. Nguyen indicated to her that the ring was given to her in Vancouver (Certified Record at pp. 157). The Minister’s Delegate never makes a clear determination as to where the ring was received.", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-36", + "id": "fc-56900-23", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 74", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 33–34", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "For my colleague, the dicta of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov] constitute an invitation to this Court to breathe new life into the privative clause in the Customs Act, such that it forecloses judicial any review of factual determinations, other than what my colleague qualifies as “egregious” factual determinations, or those for which there is no evidence, which would constitute errors of law and thus could be raised in a statutory appeal under section 68 of the Customs Act. With respect, I disagree with that approach for several reasons.", - "current_to": "2021-08-05", + "text": "It appears that Ms. Nguyen did everything she reasonably could have done given her particular factual circumstances. While the decision stated that the appraisal and invoice of the ring “does not constitute evidence that the ring was legally imported into Canada or that applicable duties and taxes were accounted for” (Certified Record at p. 14); the evidence demonstrates that Ms. Nguyen provided as much documentation of the ring as she reasonably could have possibly done. As stated in the facts, Ms. Nguyen provided at the border an appraisal, an invoice, and a diamond grading report for the ring. The appraisal for the diamond in the ring was conducted by a gemological consultant in Vancouver on March 31, 2005. This appraisal suggested an insurance coverage of the diamond before its affixation to a gold ring at $124,800. The invoice was with respect to the cost of setting the diamond in a gold band. This invoice was issued by a jeweller located in Vancouver and was dated April 15, 2005.\n\nThe diamond grading report was with respect to the diamond and was dated September 15, 2003 in Antwerp, Belgium. Diamonds are usually imported from abroad by Canadian jewelers. As is clearly stated in the July 8, 2007 GLS Gemlab Limited letter, “Any Canadian jeweller can import loose diamonds and import mountings from Hong Kong or India, set the diamonds and sell these items in Canada” (Certified Record at p. 79). Thus, most diamonds purchased by consumers in Canada will have already been imported by Canadian jewelers. Private individual buyers of diamond rings would not have any evidence as to whether the diamonds were legally imported or that applicable duties and taxes were accounted for as that would have been done by those in the business thereof.", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-37", + "id": "fc-56900-24", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 75", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 35", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "First, I do not believe that the dicta in Vavilov support this reasoning, especially when one understands Vavilov in the context of how administrative law has developed in Canada and considers that the Supreme Court reconfirmed in Vavilov much of what it had earlier determined in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]. Second, my colleague’s approach is inconsistent with section 18.5 of the Federal Courts Act, R.S.C. 1985, c. F-7. Third, I believe that this issue was settled in PSAC, which is binding on this panel. Fourth, contrary to what my colleague suggests, I do not believe that this Court’s decisions in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 [Emerson Milling] and Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 [Bell Canada] mandate my colleague’s approach as the Court was not asked in either of those cases to rule on the availability of an application for judicial review as opposed to deciding on the bounds of a permissible appeal. In addition, there were important differences in the statutory context in Emerson Milling and Bell Canada. Finally, my colleague’s approach sits uncomfortably with how cases of this nature have been considered by this Court and the Supreme Court of Canada since Dunsmuir. I explore each of these points more fully below.", - "current_to": "2021-08-05", + "text": "Moreover, as stated by the Applicant at paragraphs 24-25 of its Memorandum of fact and law, it is not unusual for people who have owned jewelry for a long time, such as Ms. Nguyen, to no longer possess the cash receipts with respect to all her jewelry. Here, the CBSA’s own jewelry appraisers give evidence that it is reasonable for the ring to have been in Canada for several years. In an appraisal dated March 7, 2007 made at the request of the government itself, the CBSA, GLS Gemlab Limited stated that the ring “has been worn for some time…” (Certified Record at p. 117). In a follow-up letter, GLS Gemlab Limited, mandated by the government itself as demonstrated above, stated that the original owner of the diamond in the ring would have most likely have been given a certificate describing the characteristics of the diamond. Nevertheless, GLS Gemlab Limited stated that “I meet many people who own laser engraved diamonds and they do not have the matching paper work” (Certified Record at p. 79).", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-38", + "id": "fc-56900-25", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 76–78", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 36", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", "division": "", - "text": "Turning first to the dicta in Vavilov, to put that case in context, it is useful to commence with a brief overview of how administrative law has developed over the last several decades, with particular focus on the availability of review for factual errors and the curial treatment of privative clauses. For it is only by understanding this context that one can appreciate the import of the decision in Vavilov.\n\nHistorically, review for factual errors made by administrative decision-makers was not available unless they fit into the category of jurisdictional error. However, legal errors made by administrative decision-makers were reviewable if they appeared on the face of the record. See Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada, 2009) (loose-leaf updated 2021, release 1), ch. 1 at 1-11 to 1-14.\n\nWith the growth of the administrative state, legislatures inserted privative clauses into many statutes in an attempt to shield the decisions of administrative decision makers from curial review. In the years following adoption of provisions like subsection 67(3) of the Customs Act, Canadian courts, including the Supreme Court of Canada, determined that privative clauses could not shield patently unreasonable administrative decisions from review because this would violate the rule of law, which could not allow such fundamentally flawed administrative decisions to stand. In order to provide a basis for judicial intervention, under the administrative law framework then in force, patently unreasonable decisions were characterized as instances where an administrative decision maker exceeded its jurisdiction.", - "current_to": "2021-08-05", + "text": "Finally, it does not appear reasonable for the recipient of a gift to ask the person who has given the gift for a sales receipt. Ms. Nguyen has also consistently stated that the ring was given to her in Vancouver by her boyfriend. While there may have been some confusion as to whether her boyfriend owned businesses in Hong Kong or in Vancouver, information relayed by Ms. Nguyen through a translator to a customs officer who initially asked several questions at once, these answers, in and of themselves, do not appear to constitute core evidence that would help lead to a determination of the origin of the ring. Ms. Nguyen’s documentary evidence appears to substantiate her response to the customs officers, yet, nevertheless, that has not changed her situation. JUDGMENT THIS COURT ORDERS that the application for judicial review is dismissed. “Michel M.J. Shore” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1390-08 STYLE OF CAUSE: THI NGOC NGUYEN and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: July 7, 2009 REASONS FOR JUDGMENT AND JUDGMENT: Shore J. DATED: July 15, 2009 APPEARANCES: Mr. Moses Kajoba FOR THE APPLICANT Ms. Suzanne Pereira FOR THE RESPONDENT SOLICITORS OF RECORD: KAJOBA & COMPANY Barristers & Solicitors Vancouver, British Columbia FOR THE APPLICANT MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia FOR THE RESPONDENT", + "current_to": "2009-07-15", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" }, { - "id": "fca-501244-39", + "id": "fc-57473-1", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 79", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 1–2", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Patently unreasonable decisions included those tainted both by patently unreasonable legal determinations and by patently unreasonable factual determinations. Legal determinations were patently unreasonable if they offered an interpretation that could not be rationally supported by the relevant legislation (see, e.g. C.U.P.E v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417, at 237). In the context of collective agreement provisions, a patently unreasonable interpretation was characterized as one the provisions could not reasonably bear (see e.g. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402, at 341). Factual determinations were characterized as being patently unreasonable where the evidence, viewed reasonably, was incapable of supporting the administrative decision-maker’s findings of fact (see, e.g. Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, 76 D.L.R. (4th) 389 [Lester] at 687).", - "current_to": "2021-08-05", + "text": "On February 22, 2008, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration signed a certificate in which they state that Hassan Almrei is a foreign national who is inadmissible to Canada on security grounds. As required by subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, (\"IRPA\"), the certificate was referred to the Court for determination as to whether it is reasonable. These are my reasons for determining that the certificate is not reasonable.\n\nThese reasons take into account the information and other evidence heard in closed hearings in the absence of Mr. Almrei and his counsel and of the public. As set out in paragraph 83(1)(c) of the IRPA, the Court may, and shall on the request of the Minister, hear information or other evidence in the absence of the public if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person. A separate private set of reasons for judgment has been filed in the Designated Proceedings Registry of the Federal Court and will be accessible only to the Ministers and their counsel and to the Special Advocates and to any appellate court that may consider this matter further.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-40", + "id": "fc-57473-2", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 80", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 3–4", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "As concerns factual determinations, the starting point for the discussion of these principles in the Supreme Court’s jurisprudence of the era is the decision in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, 41 D.L.R. (3d) 6, one of the seminal cases enshrining the principle of deference in Canadian administrative law. There, the Supreme Court considered the ambit of review of determinations made by the Saskatchewan Labour Relations Board, whose decisions were protected by a strongly-worded privative clause. It stated as follows at 388-389: There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene. A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.", - "current_to": "2021-08-05", + "text": "In the aftermath of the tragic events of September 11, 2001 (“9/11”), it was reasonable to believe that Hassan Almrei posed a risk to the security of Canada. On the information then available to officials and to the Court, the inference was compelling that he was an extremist who supported the ideology of Osama Bin Laden and was involved in a global false document network. In security intelligence terms, Almrei had a “pedigree”. He came from a Syrian family linked to the Muslim Brotherhood, an organization formerly known for terrorist acts. Raised in Saudi Arabia, he had travelled to Pakistan and Afghanistan to join the jihad against the communist regime in Kabul. He was known to have associated with a leader of the Arab Afghan mujahidin, Ibn al Khattab, and to have supported Khattab’s jihad against the Russians in Chechnya.\n\nFollowing his admission to Canada in 1999, Almrei was linked to persons believed on reasonable grounds to have extremist views. Almrei was known to have contacts in Canada and abroad from whom he could obtain false identity and travel papers. He had himself used a forged passport to come to Canada. He lied to Canadian authorities about his background and concealed his travels to Afghanistan and Tajikistan. Canada extended its protection to Almrei by recognizing him as a Convention refugee. He returned the favour by providing a forged Canadian passport and funds to an Arab Afghan associate who had crossed our border illegally, arranged a marriage of convenience for a failed refugee claimant and dealt in illicit drivers’ licenses.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-41", + "id": "fc-57473-3", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 80–82", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 5", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: Anisminic, Ltd. v. Foreign Compensation Commission et al.; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board, supra; R. v. Quebec Labour Relations Board, Ex p. Komo Construction Inc. [Footnotes omitted and emphasis added.]\n\nThe Supreme Court’s reference to “basing a decision on extraneous matters” and “failing to take relevant factors into account” can be read as encompassing factual matters.\n\nThe possibility of seriously erroneous factual determinations constituting patently unreasonable error was confirmed by the Supreme Court of Canada in its subsequent decision in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, 14 D.L.R. (4th) 289. There, the Supreme Court was faced with judicial review of a decision of a labour arbitrator, whose decision was protected by a privative clause. In concurring reasons, two judges who wrote separately for the Court, confirmed that a narrow range of factual errors were subject to review for being patently unreasonable.", - "current_to": "2021-08-05", + "text": "In 2001, Almrei was at the very least an opportunist willing, for a suitable fee, to violate Canada’s laws while he took advantage of its generosity. His object was to gain Canadian permanent residency and Citizenship so he could travel freely abroad for business purposes. Prior to 9/11, this was known to the Canadian Security Intelligence Service (“CSIS”) and their counterparts in the Royal Canadian Mounted Police (“RCMP”). CSIS had been watching his movements and collecting information about him and his associates for over two years. The RCMP was conducting its own criminal investigation. Much of the information collected by both agencies was provided by human sources. CSIS saw Almrei as a “sleeper” and were content initially to keep him under surveillance and to identify his contacts. The events of 9/11 instantly changed that dynamic. Almrei was then viewed, on reasonable grounds, to be part of a much greater threat to North American security as someone who had the skills and the contacts to arrange for terrorists to cross borders on forged papers.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-42", + "id": "fc-57473-4", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 83", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 6–7", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Justice Lamer, who wrote for two members of the Court, stated at 492-495: In principle, where there is a privative clause the superior courts should not be able to review errors of law made by the administrative tribunals. However, it is now settled that some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on the question of which errors of law result in the loss of jurisdiction. […] this Court has tended since Nipawin, supra, and C.U.P.E., supra, to avoid intervening when the decision of the administrative tribunal was reasonable, whether erroneous or not. In other words, only unreasonable errors of law can affect jurisdiction. […] In looking for an error which might affect jurisdiction, the emphasis placed by this Court on the dichotomy of the reasonable or unreasonable nature of the error casts doubt on the appropriateness of making, on this basis, a distinction between error of law and error of fact. In addition to the difficulty of classification, the distinction collides with that given by the courts to unreasonable errors of fact. An unreasonable error of fact has been categorized as an error of law. The distinction would mean that this error of law is then protected by the privative clause unless it is unreasonable. What more is needed in order that an unreasonable finding of fact, in becoming an error of law, becomes an unreasonable error of law? An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable. The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts.", - "current_to": "2021-08-05", + "text": "If these proceedings were based solely on the information available to the Ministers and the Court in October 2001, I would have no difficulty in concluding that Almrei’s arrest and detention on a security certificate to contain the perceived threat was reasonable. But the Court is not engaged in that task. Nor is it conducting a judicial review of whether the Ministers who signed the fresh certificate in February 2008 made the correct decision. The question for the Court to determine is whether, on all of the information and other evidence presented in these proceedings, is the certificate reasonable to-day. Or, in other words, is the assertion that Almrei is presently a security risk based on objectively reasonable grounds.\n\nIn arriving at a conclusion on that question, the Court has considered information and evidence that was not placed before the Ministers when the decision was made to issue the 2008 certificate, and that was not previously presented to the Court, which has cast a different light on circumstances and events.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-43", + "id": "fc-57473-5", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 83–84", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 8", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "[…] In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal. I hasten to add that the distinction between an error of law and one of fact is still entirely valid when the tribunal is not protected by a privative clause. Indeed, though all errors of law are then subject to review, only unreasonable errors of fact are, but no others.\n\nJustice Beetz, who wrote for the remaining members of the Court, noted at 480-481: Whatever the arbitrator's jurisdiction, strictly speaking, an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause. I cannot say that the arbitrator's award constituted such an abuse. [...] I am far from certain that I would have decided as the arbitrator did, but I also cannot say that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole. [emphasis added]", - "current_to": "2021-08-05", + "text": "In these reasons, I will first set out the background to the issuance of the certificate, the procedural history of this application and the present legislative regime under which it was considered. Next, I will review the evidence and the issues, both legal and factual, that were raised during the proceedings. I will then outline the allegations concerning Mr. Almrei. Finally I will discuss my analysis and conclusions arising from the evidence and issues. Formal judgment will be reserved to allow the parties some time to review these reasons and propose questions for certification. An index is provided for convenient reference. INDEX (by paragraph numbers): Background 9-17 Procedural History of this Application 18-53 Legal Framework 54-57 Inadmissibility 58-62 “Member of an Organization” 63-69 “Terrorism” 70-74 Armed conflict exemption 75-79 “Danger to National Security” 80-81 Burden of Proof 82 Quality of the Evidence 83-85 Standard of Proof 86-105 Procedure 106-111 Role of the Special Advocates 112-113 The Issues 114-120 The Allegations 121-122 The “Information and Other Evidence” Overview 123-127 The Open Source Information 128-131 Third Party Information 132-140 Telecommunications Intercepts 141-145 Physical Surveillance Reports 146-148 Information Obtained or Derived from Torture or Cruel, Inhumane or Degrading Treatment 149-153 The Human Source Information 154-164 The Service Witnesses 165-201 Hassan Almrei 202-260 The Expert Opinion Evidence 261-262 Dr. Martin Rudner 263-286 Mr. Thomas Quiggin 287-322 Sheikh Ahmad Kutty 323-335 Dr. Lisa Given 336-348 Dr.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-44", + "id": "fc-57473-6", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 85", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 8–9", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The notion that certain types of serious factual errors will support intervention even in the face of a privative clause was again endorsed by the Supreme Court of Canada in Lester, where the Court again reviewed a decision of a labour board, whose decisions were protected by a privative clause. While holding that the board’s decision was patently unreasonable because there was no evidence to support that a successorship had occurred under a rational interpretation of the relevant provisions in the legislation, Justice McLachlin (as she then was) described the sort of factual error that might allow intervention under the patently unreasonable standard is the following way at 687: Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere. [emphasis added]", - "current_to": "2021-08-05", + "text": "Brian Williams 349-394 Analysis Are the factual allegations against Almrei supported by the information and other evidence? 395-398 Osama Bin Laden, Al Qaeda and the “Bin Laden Network” 399-429 Almrei’s Travel and Status in Canada 430-434 Almrei’s association with Osama Bin Laden and support for jihad 435-455 Arab Afghan Connections 456 Ibn Khattab 457-464 Nabil Almarabh 465-469 Ahmed Al Kaysee 470 Hisham Al Taha 471 Involvement in False Documentation 472-478 Security Consciousness and Use of Clandestine Methodology 479 Should the Certificate be Stayed as an Abuse of the Court’s Process? 480-483 Lack of Disclosure/Inability to Meet the Case 484-489 Destruction of Evidence 490-492 Choice of Procedure 493-497 Breach of the Duty of Candour 498-503 Conclusion 504-509 Certified Questions 510-513 BACKGROUND\n\nIn January 1999, Almrei arrived at Pearson Airport using a false United Arab Emirates passport bearing a valid multiple entry visa, was admitted as a visitor, and subsequently claimed Convention refugee protection on the ground that he feared persecution in Syria. The Immigration and Refugee Board granted him protection in June 2000. He applied for permanent residence in November 2000.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-45", + "id": "fc-57473-7", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 86", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 10–11", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, the Supreme Court again addressed the issue in the context of review of a decision of a labour arbitrator, that was protected by a privative clause. In overturning the arbitrator’s conclusion on the issue of just cause, Justice Cory, writing for the majority of the Court stated at paras. 41- 45 and 47- 48: 41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law. 42 Where a tribunal is interpreting a legislative provision, the test is: . . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, at p. 237. 43 A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear”:Bradco, supra, at p. 341. 44 It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell, 1979 CanLII 51 (SCC), [1980] 1 S.C.R. 245, at p. 277: . . .", - "current_to": "2021-08-05", + "text": "A certificate naming Almrei as a security risk was signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada on October 19, 2001. Almrei was then taken into custody and detained in accordance with subsection 40.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, (“the former Act”). The matter was then referred to the Federal Court for a determination as to the reasonableness of the certificate. Hearings were held in October and November 2001. Following a ruling that he could not testify in a closed session, as he had requested, Mr. Almrei declined to provide evidence in that proceeding.\n\nThe Court concluded that the closed evidence, heard in the absence of Mr. Almrei and his counsel, provided reasonable grounds to believe that Mr. Almrei was a member of an international network of extremist individuals who supported the Islamic extremist ideals espoused by Osama Bin Laden and that Mr. Almrei was involved in a forgery ring with international connections: Almrei (Re), 2001 FCT 1288, [2001] F.C.J. No. 1772.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-46", + "id": "fc-57473-8", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 86", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 12", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review. 45 When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”: Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644, at p. 669 per McLachlin J. [...] 47 In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law made by the tribunal. As Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1370, observed “[i]n some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it may be no less unreasonable but this can only be understood upon an in‑depth analysis.” In Lester, supra, this Court conducted a review of the record to determine if there was any evidence which could reasonably support a particular factual finding made by a labour relations board.", - "current_to": "2021-08-05", + "text": "Efforts followed to remove Almrei from Canada. Opinions were issued by delegates of the Minister of Citizenship and Immigration that Almrei was a danger to the security of Canada and could be removed to Syria, his country of nationality. Mr. Almrei sought judicial review of those opinions in the Federal Court and brought several applications for release from detention: Almrei v. Canada (Minister of Citizenship and Immigration), 2004 FC 420, [2004] F.C.J. No. 509 affirmed, Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, [2005] F.C.J. No. 213; Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 355, [2005] F.C.J. No.437 Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 1645, [2005] F.C.J. No. 1994; Almrei v. Canada (Minister of Citizenship and Immigration), 2007 FC 1025, [2007] F.C.J. No.1292.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-47", + "id": "fc-57473-9", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 86–87", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 13", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "48 Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings. [emphasis added]\n\nIt was against this backdrop that the provisions in the Federal Courts Act providing for judicial review of federally-regulated decision-makers were enacted. To a certain extent, they provided for review on a somewhat broader basis than that which was historically available at common law.", - "current_to": "2021-08-05", + "text": "Mr. Almrei’s appeal from the decision of the Federal Court of Appeal rejecting his challenge to the security certificate provisions of IRPA, as infringing sections 7 and 12 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 (“the Charter”), was merged with those in the security certificate cases involving Adil Charkaoui and Mohammed Harkat. Reasons for judgment were issued by the Supreme Court of Canada on February 23, 2007 in Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [2007] S.C.R. 350 (“Charkaoui 1”). In its decision, the Supreme Court concluded that the IRPA regime for determining the reasonableness of security certificates and for reviewing the detention of named persons was inadequate to protect their interests when classified information was provided to a designated judge of the Federal Court during the closed proceedings.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-48", + "id": "fc-57473-10", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 88", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 14–15", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Currently enshrined in sections 18, 18.1-18.5 and 28 of the Federal Courts Act, these provisions allow for judicial review by the Federal Court of Appeal (for the tribunals named in subsection 28(1) of the Federal Courts Act), or by the Federal Court (for all other federally-regulated administrative decision-makers), except where a statutory right of appeal is provided. Subsection 18.5 of the Federal Courts Act, which is of central importance to the issues before us, provides that access to judicial review is foreclosed only to the extent a right of appeal is present. It states: Exception to sections 18 and 18.1 Dérogation aux art. 18 et 18.1 18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.", - "current_to": "2021-08-05", + "text": "The Supreme Court declared that the procedures under IRPA for the judicial confirmation of certificates and for the review of the detention of the named persons violated the fundamental justice provisions of section 7 and had not been shown to be justified under section 1 of the Charter. Accordingly, the procedures were of no force or effect. In order to give Parliament time to amend the law, the Supreme Court suspended its declaration with respect to the invalidity of the certificate procedure for one year from the date of the judgment. After that year, the certificates concerning Mr. Almrei and any other named person that had been declared \"reasonable\" would lose that status. Should the Ministers wish to issue a certificate thereafter, a fresh determination of reasonableness would be required under the new process to be devised by Parliament. Similarly, any detention review occurring after the delay would be subject to the new process: (Charkaoui 1 at para. 140).\n\nThe legislative response to Charkaoui 1 was enacted within the one year timeline set by the Supreme Court. An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S. C. 2008, c. 3 (\"Bill C-3\") received Royal Assent on February 14, 2008 and came into force on February 22, 2008. The amendments to IRPA enacted through Bill C-3 provided for the appointment of Special Advocates to represent the interests of named persons during closed security certificate proceedings and revised the detention review procedures set out in IRPA.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-49", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "id": "fc-57473-11", + "doc_type": "caselaw", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 88", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 16", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi.", - "current_to": "2021-08-05", + "text": "In Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 (“Charkaoui II”) the Supreme Court of Canada considered the nature of the duty owed by the Service to retain and disclose information in its possession about a person named in a security certificate issued under subsection 77(1) of the Act. Previously, it had been the policy of the Service to destroy all operational notes after they had been transcribed into a report. The Supreme Court found this policy to be based upon a flawed interpretation of section 12 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act). The Court held that CSIS should be required to retain all of the information in its possession and disclose it to the Ministers and the designated judge in order to uphold the named person’s right to procedural fairness. If such were done, the Court reasoned, Ministers would be better positioned to make appropriate decisions on issuing a certificate. The designated judge would also be able to consider all of the evidence in determining what should be protected on national security grounds and what should be disclosed to the named person.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-50", + "id": "fc-57473-12", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 89", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 17–18", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Grounds for review are listed in subsection 18.1(4) of the Federal Courts Act, which provides: Grounds of review Motifs (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; (e) acted, or failed to act, by reason of fraud or perjured evidence; or e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; (f) acted in any other way that was contrary to law. f) a agi de toute autre façon contraire à la loi.", - "current_to": "2021-08-05", + "text": "On February 22, 2008, the date that the amendments to IRPA came into effect, the Ministers signed new certificates naming Mr. Almrei and four other persons as security risks and referred the certificates to the Federal Court for review under subsection 77(1) of IRPA. To initiate the present proceedings the Ministers filed a Notice of Referral of Certificate together with a top-secret Security Intelligence Report (“SIR”) with supporting reference materials. The SIR is a narrative report prepared by CSIS setting out its grounds for believing that a person is inadmissible to Canada. A public summary of the SIR entitled a Statement Summarizing the Information, with the corresponding open source reference material, was served on Mr. Almrei and filed with the Court. PROCEDURAL HISTORY OF THIS APPLICATION\n\nAs Mr. Almrei remained in custody on February 22, 2008, more than seven years after his arrest on the initial certificate, a review of his detention was the initial priority. In compliance with the Supreme Court’s decision in Charkaoui I, the revised statute required a detention review to begin within six months of the coming into force of the new legislation. It took time to resolve some preliminary matters including the appointment of counsel and the selection of Special Advocates. The detention review was begun on August 20, 2008 and continued through the fall months. Following a series of hearings, Mr. Almrei was ordered released from detention on strict terms and conditions. The grounds for that decision are set out in reasons for judgment issued on January 2, 2009: Re Almrei, 2009 FC 3, [2009] F.C.J. No. 1.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-51", + "id": "fc-57473-13", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 90–92", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 19–20", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "With the growth in number and expertise of administrative decision-makers and the increasing complexity of questions remitted to them, the Supreme Court of Canada determined that, at least in certain instances, legal determinations made in the absence of a privative clause should be afforded deference. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 DLR (4th) 1 [Southam], building on its earlier decision in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385 [Pezim], the Supreme Court developed a third standard of review somewhere between correctness and patent unreasonableness, which has been termed reasonableness simpliciter. Such standard required that a decision withstand a somewhat probing examination. The Supreme Court held that the difference between a merely unreasonable and a patently unreasonable decision was in the immediacy or obviousness of the defect. If the defect was apparent on the face of the decision-maker’s reasons, then the decision was patently unreasonable. Conversely, if it took some significant searching or testing to find the defect, then the decision was unreasonable but not patently unreasonable.\n\nIn Southam, the new reasonableness simpliciter standard of review was applied to all aspects of a decision of the Competition Tribunal, including its determinations of mixed fact and law. The relevant legislation provided for a right of appeal to this Court on issues of law and, with leave, on issues of fact.\n\nPerhaps not surprisingly, the determination of which of three standards of review might apply and discernment of their respective content proved increasingly complex and much litigation was devoted to the point.", - "current_to": "2021-08-05", + "text": "In correspondence dated September 12, 2008, in the DES-4-08 certificate, counsel for the Ministers advised the Court they had asked CSIS to examine closely the information and other evidence in each of the five certificate cases in order to determine whether original operational notes had been preserved in accordance with the decision of the Supreme Court in Charkaoui II. Further to motions filed by the respondent on September 30, 2008 (amended on October 31, 2008), a disclosure order was issued on October 10, 2008 in which CSIS was directed to produce all information and intelligence related to Mr. Almrei in its possession or holdings.\n\nCSIS was unable to meet the time-table initially fixed by the Court due to the quantity of records to be searched and the workload demands caused by similar orders in each of the other four certificate cases. Extensions of time were required to complete the work. In the interim, the proceedings continued, hearings were conducted and information was provided to the Court and the Special Advocates in response to undertakings made by CSIS and the Ministers' counsel during the detention review.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-52", + "id": "fc-57473-14", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 93–95", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 21–22", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The Supreme Court of Canada developed the so-call “pragmatic and functional” analysis to assist in this discernment. As developed particularly in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, 95 N.R. 161, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222, 60 D.L.R. (4th) 193, this analysis required a reviewing court to consider several contextual factors to ascertain the applicable standard of review. These principally were: the presence or absence of a privative clause in the legislation creating the decision-maker; the expertise of the administrative decision-maker as compared to that of a court in respect of the point(s) in issue; the purpose of the statute conferring jurisdiction on the decision maker and of the provision(s) in issue; and the nature of the problem solved in the decision under review.\n\nIn Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme Court confirmed that the foregoing analysis applied to each of the determinations made by an administrative decision-maker. In result, different standards of review could, and frequently did, apply to different parts of a decision.\n\nThe increasing complexity of the requisite analysis and its concomitant impact on predictability and cost in judicial review matters gave rise to significant criticism, causing the Supreme Court of Canada to largely jettison and re-work the entire framework for judicial review in Dunsmuir.", - "current_to": "2021-08-05", + "text": "On October 31, 2008 motions and a notice of constitutional question were filed by the respondent indicating his intention to challenge the standard of proof of \"reasonable grounds to believe\" set out in section 33 of the IRPA. Mr. Almrei sought an order that the standard of proof to be met by the evidence in the Court's determination of a certificate’s reasonableness pursuant to section 78 of the IRPA is to a balance of probabilities or, in the alternative, a declaration that the standard is inconsistent with the right to a fair hearing protected by section 7 of the Charter. In case management conferences with Mr. Almrei and counsel, I indicated that I would defer ruling on these matters until the completion of the evidentiary hearings.\n\nMr. Almrei had previously brought a motion challenging the constitutionality of subsections 85.4(2) and 85.5(b) of IRPA which limit communications by Special Advocates with the named persons and their counsel after the Special Advocates have had access to the closed information in the SIR. This was linked with similar motions brought on behalf of three of the other named persons and which were collectively heard and adjudicated by the Chief Justice. In written reasons and an order released on November 3, 2008 (Re Almrei, 2008 FC 1216, [2008] F.C.J. No. 1488), the Chief Justice dismissed the constitutional motion as premature without prejudice to any party's right to challenge the constitutionality of the legislation with an appropriate factual matrix.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-53", + "id": "fc-57473-15", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 96–98", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 23", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In Dunsmuir, the Supreme Court collapsed two of the three previous standards of review of patent unreasonableness and reasonableness simpliciter into a single deferential standard of review called reasonableness. Thus, post-Dunsmuir, there were and are but two standards of review: correctness and reasonableness.\n\nThe Supreme Court held in Dunsmuir that the reasonableness standard was presumptively applicable in most cases, but held that the presumption could be rebutted where the question fell into one of four defined categories or where the contextual factors enumerated in Pushpanathan might require selection of the correctness standard. The four categories for application of correctness set out by the Court in Dunsmuir were: (1) constitutional questions; (2) questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers; (3) questions of central importance to the legal system as a whole; and (4) what the majority termed “true questions of jurisdiction or vires”, which were said to encompass jurisdiction “in the narrow sense of whether or not the tribunal had the authority to make the inquiry” (at para. 59).\n\nThe single framework for review under the deferential reasonableness standard was defined in Dunsmuir as being concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process but also with assessment of whether a decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and applicable law.", - "current_to": "2021-08-05", + "text": "By order dated January 2, 2009, the Chief Justice directed that my colleague Justice Eleanor Dawson adjudicate upon two common issues of law that had arisen in four of the certificate proceedings in relation to the Charkaoui II production, including this matter. The two common issues were identified in the order as follows: a) What is the role of the designated judge with respect to the additional information disclosed by the Ministers pursuant to the decision of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38? More specifically, does paragraph 62 of that decision require the judge to \"verify\" all information disclosed by the Ministers if the Special Advocates and counsel for the Ministers all agree that a portion of that information is irrelevant to the issues before the Court? b) Should the information disclosed to the named persons and their counsel be placed on the Court's public files in these proceedings? If so, when?", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-54", + "id": "fc-57473-16", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 99", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 24–25", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Notably, under Dunsmuir, the presence of a privative clause in a decision-maker’s constituent statute no longer limits the scope of the Court’s review to patent unreasonableness. Indeed, in Dunsmuir, the decision of the adjudicator under review was protected by a strongly-worded privative clause in s. 101(1) of the New Brunswick Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, which provided that “Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court”. The presence of this provision in the adjudicator’s constituent statute played no role in the Supreme Court’s analysis of whether the decision was reasonable. Instead, the Court applied its newly-formulated approach to reasonableness and overturned the adjudicator’s statutory interpretation.", - "current_to": "2021-08-05", + "text": "At paragraph 62 of its decision in Charkaoui II, the Supreme Court had made the following comments: As things stand, the destruction by CSIS officers of their operational notes compromises the very function of judicial review. To uphold the right to procedural fairness of people in Mr. Charkaoui's position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. The ministers and the designated judge will in turn be responsible for verifying the information they are given. If, as we suggest, the ministers have access to all the undestroyed \"original\" evidence, they will be better positioned to make appropriate decisions on issuing a certificate. The designated judge, who will have access to all the evidence, will then exclude any evidence that might pose a threat to national security and summarize the remaining evidence -- which he or she will have been able to check for accuracy and reliability -- for the named person. [Emphasis added]\n\nAs a result of the highlighted phrases, a question arose as to whether the designated judge in a certificate case must personally verify all of the information provided to the Court in conformity with the disclosure obligation imposed on CSIS.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-55", + "id": "fc-57473-17", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 26", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In reaching its decision, the Supreme Court made two points of particular relevance for the present appeal. First, it noted that the sort of review it had fashioned under the newly-formulated reasonableness standard was required by rule of law principles and that judicial review is constitutionally guaranteed in Canada. At paragraphs, 27-31 Bastarache and Lebel, JJ., writing for the majority, stated as follows: [27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.", - "current_to": "2021-08-05", + "text": "In reasons for judgment released on March 5, 2009 (Re Almrei, 2009 FC 240, [2009] F.C.J. No. 346), Justice Dawson considered that the reference to verification in the Charkaoui II judgment stemmed from the context of the former legislative scheme, not that enacted by Bill C-3. The Supreme Court could not have intended that the Court consider information which the Ministers and the Special Advocates had agreed was irrelevant. Where the information was relevant, the Court was required under the amended statute to determine whether disclosure would be injurious to national security. That responsibility could not be delegated to counsel.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-56", + "id": "fc-57473-18", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 27", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21. [30] In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy.", - "current_to": "2021-08-05", + "text": "At paragraph 62 of her reasons, Justice Dawson concluded as follows,: (a) Where the Ministers and the special advocate agree that material disclosed by the Ministers pursuant to Charkaoui 2 is irrelevant to the issues before the Court, the Court may rely upon that agreement. In such a case, the Court need not verify information that the Ministers and the Special Advocates agree to be irrelevant. (b) No information filed with the Court in confidence pursuant to Charkaoui 2 can be disclosed to the person named in a security certificate without the prior approval of the Court. (c) Information or evidence disclosed to the named persons pursuant to Charkaoui 2 should be disclosed directly to counsel for each person named in a security certificate. The Charkaoui 2 disclosure should not be placed on the Court’s public file. Such information or evidence would only become public if it is relied upon by a party and placed into evidence. (d) Summaries of evidence or information made pursuant to paragraph 83(1)(e) of the Act must be placed on the Court’s public file because they relate to information relied upon by the Ministers and to what transpired in the in camera proceedings.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-57", + "id": "fc-57473-19", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 28–30", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "As noted by Justice Thomas Cromwell, “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (“Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent. [31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p.", - "current_to": "2021-08-05", + "text": "Additional issues outside the scope of the Chief Justice’s Order were raised at the hearing before Justice Dawson. It was argued that the designate judge should not have regard to any portion of the Charkaoui II disclosure unless it was necessary to adjudicate a disagreement or it was relied upon by one of the parties. Justice Dawson noted, at paragraphs 34-36 of her reasons, that it was premature to make any pronouncements circumscribing the role of the designated judge in reviewing the material absent an understanding of the content and submissions on a proper evidentiary basis. Each case would depend on its own circumstances and there could be many reasons for the Court to review the information.\n\nJustice Dawson expressly made no determination about the permissibility of the Ministers later seeking to augment the information upon which the security certificate is based, or to amend the report filed in support of the certificate, by relying upon a portion of the Charkaoui II disclosure (endnote 1 to the Reasons for Order). The question of whether the Ministers could augment the information in the SIR became an issue in this case but the additional information was from sources other than the Charkaoui II disclosure.\n\nOn February 9, 2009, CSIS having completed their file search, the Ministers filed bound volumes entitled “Charkaoui II Production” including DVDs containing approximately 1276 records of varying size retrieved from the CSIS operational databank in an electronic format.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-58", + "id": "fc-57473-20", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 100–101", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 31–32", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier: Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38] See also D. J. Mullan, Administrative Law (2001), at p. 50.\n\nSecond, it was clear that the newly-formulated reasonableness standard applies to both legal and factual determinations made by an administrative decision-maker. Indeed, this is inherent in the formulation of the standard itself, which requires that a reasonable decision be defensible in light of both the applicable facts and law.", - "current_to": "2021-08-05", + "text": "Some of the information in the produced records was redacted or blacked out by CSIS as it concerned the investigation of other persons and was, in their view, irrelevant as outside the scope of the October 10, 2008 Order. Internal administrative information such as the names of CSIS employees, file and phone numbers and information which would disclose operational methods or identify human sources was also redacted. I considered it necessary to review unredacted or clear versions of these records to ensure that the redactions were valid and did not exclude information material to the proceedings. Based on that review, I was satisfied that for the most part, the redactions had been appropriate in that they did not obscure information that was material to this case and necessary for the Court and the Special Advocates to perform their functions in the closed proceedings.\n\nTo illustrate, included in the records were documents such as periodic situation or overview reports concerning all of the CSIS investigative targets during the relevant time-frame. These records were produced because they incidentally contained Mr. Almrei’s name and information concerning him. The remainder of the information in these documents was irrelevant to these proceedings and was properly redacted in the disclosed records. In this respect, I would note that paragraph 83(1)(j) of the IRPA provides that the Court shall not base a decision on information or other evidence provided by the Minister if the judge determines that it is not relevant or if the Minister withdraws it.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-59", + "id": "fc-57473-21", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 102–103", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 33–34", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Subsequent to the decision in Dunsmuir, courts, including this one and the Supreme Court of Canada, applied the newly-formulated reasonableness standard in judicial review of administrative decisions, including those where the decision was shielded by a privative clause (see, e.g. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; Igloo Vikski; PSAC and the various cases listed in the appendix to that decision).\n\nIn Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa], which was decided the year after Dunsmuir, the Supreme Court of Canada confirmed that the Dunsmuir formulation of reasonableness applies under the Federal Courts Act and that questions of law are subject to reasonableness review, despite the wording of paragraph 18.1(4)(c), which contemplates review for errors of law. The majority held that the paragraph merely listed the grounds of review as opposed to the standard of review to be applied to errors of law. As for questions of fact, however, both the majority and the minority held that paragraph 18.1(4)(d) of the Federal Courts Act sets out both the grounds of review and the parameters of what reasonableness requires for review of factual errors. The majority noted that it was “[… ] clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act” (at para. 46). Justice Rothstein, writing in dissent, concurred on this point.", - "current_to": "2021-08-05", + "text": "In some instances, while the redacted information was not on its face material to these proceedings, I considered that the redactions had been excessive and tended to unnecessarily obscure portions of the records. For example, the names and other identifying particulars of casual contacts and sources of information, including police officers, was routinely redacted in these documents in keeping with the Service’s policy of protecting human sources. This information was not sensitive and would not have put individuals at risk if inadvertently released. On March 20, 2008 I ordered reconsideration of the redactions in the documents filed on February 9, 2009. Ministers were also directed to conduct a further search for additional documents relating to certain named individuals with a connection to this case. On March 27, 2009 the Ministers filed revised copies of the February 9, 2009 document production with a number of redactions removed.\n\nIt became apparent during the review of the February 9th documents that CSIS had conducted a thorough search of their operational databank for any records that contained Mr. Almrei’s name (and his “kunya” or respect name), and variants thereof. A great deal of this material was repetitive and of no evidentiary value, as it merely reiterated previously collected information in the periodic reports required by the administrative procedures of the Service.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-60", + "id": "fc-57473-22", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 104–106", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 35–37", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "It is noteworthy that the decision of the Immigration Appeal Division that was the subject of review in Khosa was protected by a privative clause, albeit the clause was less broadly worded than the one in section 67 of the Customs Act. Subsection 162(1) of the Immigration and Refugee Protection Act provided that the Immigration Appeal Division had “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.\n\nOne further development of the case law of the Supreme Court of Canada in the wake of Dunsmuir, decided prior to Vavilov, merits mention, namely the decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 [Edmonton East]. There, the Supreme Court confirmed that the Dunsmuir reasonableness analysis applied to statutory appeals in addition to judicial review applications.\n\nWith this background in mind, it is now possible to turn to examine the decision of the Supreme Court of Canada in Vavilov.", - "current_to": "2021-08-05", + "text": "It is doubtful that the Supreme Court had this type of disclosure in mind when they stated that “…CSIS should be required to retain all the information in its possession and to disclose it to the Ministers and the designated judge” at paragraph 62 of Charkaoui II. In hindsight, a more focused search would have saved considerable time. Produced records that were of value included electronic intercept and physical surveillance reports and reports of requests for information addressed to foreign agencies and their responses, the implications of which will be discussed below.\n\nOn March 24-25, 2009 the Ministers filed an Amended Security Intelligence Report (“A/SIR”) and an additional reference volume, and an Amended Summary of the Security Intelligence Report together with corrections to the reference index of February 22, 2008 and additional public and private reference material. The respondent and the Special Advocates objected to the filing of this new material more than a year after the issuance of the certificate.\n\nIn Charkaoui II, the Supreme Court commented on the practice of submitting evidence to the designated judge considering the reasonableness of the certificate which was not before the Ministers when they signed it. The Court concluded that any new evidence should be admitted, regardless of whether it is submitted to the designated judge by the Ministers or by the named person. The judicial review process is not limited to a consideration of the material before the Ministers or to the bases of their initial decision and new evidence can be as beneficial to the named person as to the Ministers: Charkaoui II at paragraphs 70-73.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-61", + "id": "fc-57473-23", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 107", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 38–39", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In Vavilov, the Supreme Court set out a revised framework applicable to judicial review in Canada, but, in so doing, confirmed that the “revised framework will continue to be guided by the principles underlying judicial review […] articulated in Dunsmuir [...]: that judicial review functions to maintain the rule of law while giving effect to legislative intent” (at para. 2). The Court also, with three exceptions, maintained the previous framework enshrined in Dunsmuir. More specifically, it confirmed that reasonableness is a single standard, that takes it colour from context, and that reasonableness is concerned both with the existence of justification, transparency and intelligibility within the decision‑making process and with assessment of whether a decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and applicable law. In Vavilov, the Court gave more definition to this formulation of the reasonableness standard, but did not overturn the fundamental approach set out in Dunsmuir.", - "current_to": "2021-08-05", + "text": "In my view, such a practice may in some circumstances constitute an abuse of the Court’s process where, for example, information is unfairly withheld for tactical reasons and provided too late in the proceedings for the named person to respond, as was alleged here. In this instance, there was no evidence before me to substantiate such a finding. The material was accepted subject to further consideration following closing arguments. I recognize, however, that the practical effect of this decision was to allow the Ministers to bolster their case following the strong challenge presented by the respondent during the detention review hearings. The Ministers filed a sizable body of material that had not been referenced or considered in the decision to issue the certificate.\n\nOn March 27, 2009 I dismissed motions brought by the respondent in anticipation of the reasonableness hearings: Re Almrei, 2009 FC 322, [2009] F.C.J. No. 681. The first motion, regarding the constitutionality of subsections 85.4(2) and 85.5(b) of the IRPA, in relation to communications between the respondent and the Special Advocates, was largely based on the arguments previously heard and determined by Chief Justice Allan Lutfy in November.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-62", + "id": "fc-57473-24", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 108", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 40–41", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In terms of the three changes to the previous framework wrought by Vavilov, the Supreme Court determined that the contextual factors from Pushpanathan (which, it will be recalled, included the presence of a privative clause) henceforth play no role in selection of the standard of review. Second, it abolished the category of so-called “true questions of jurisdiction”, which were previously held in Dunsmuir to give rise to correctness review. Following Vavilov, such questions are now instead subject to reasonableness review, just like most issues in a judicial review application. Thus, currently, unless a statute specifically sets out the applicable standard of review, reasonableness will be applied in judicial review of all questions except constitutional questions, questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers and questions of central importance to the legal system as a whole.", - "current_to": "2021-08-05", + "text": "I concluded that the issue of the constitutionality of the restrictions on communication by the Special Advocates continued to be premature in the absence of a factual basis. The alternate remedy sought, to authorize the respondent to submit questions to the Special Advocates in a sealed envelope and to receive their replies without disclosure to the Court or to the Ministers, was also denied. I ruled that while there was no obstacle to the respondent asking questions of the Special Advocates without informing the Court or the Ministers, the Special Advocates would have to obtain judicial authorization prior to communicating their answers to the respondent so as to respect the Court’s obligation to protect information that would injure Canada’s national security.\n\nThe Special Advocates were authorized throughout the proceedings to communicate with the respondent and his counsel regarding scheduling matters and, from time to time, to discuss certain legal issues so long as this did not involve disclosure of top secret information they had access to in the closed materials. They were also authorized to communicate with the Special Advocates appointed in the other security certificate cases regarding common disclosure issues stemming from the closed hearings. On May 14, 2009, for example, Mr. Copeland was authorized to communicate to Mr. Almrei and his counsel that the top secret material filed by the Ministers did not rely upon information that was obtained by or derived from the interrogation of detainees by the US authorities at Guantánamo Bay, Cuba or at any of the so-called \"black sites\" said to be operated by US intelligence services. On May 20, 2009, Mr. Cameron was authorized to communicate with counsel for Mr. Almrei about the redacted contents of a RCMP report.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-63", + "id": "fc-57473-25", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 109", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 42–43", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The third change to the previous framework for conduct of judicial review wrought by Vavilov concerns the approach to statutory appeals. The Court held that, absent statutory language to the contrary, statutory appeals henceforth will be subject to appellate as opposed to judicial review principles, thereby overturning its earlier holdings on the point, including in Edmonton East, Pezim and Southam. The standards from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 are accordingly now applicable to statutory appeals from administrative decisions. Thus, in a statutory appeal, errors of law are now subject to review under the correctness standard whereas, where an appeal is provided for factual issues, errors of fact or of mixed fact and law from which a legal issue cannot be extricated are subject to review for palpable and overriding error.", - "current_to": "2021-08-05", + "text": "In his motions, the respondent also sought a declaration that the Charter required the importing of the balancing test in section 38.06 of the Canada Evidence Act into paragraph 83(1)(e) of IRPA so as to allow for the disclosure of information where the interests of justice outweighed the injury to national security. I concluded that this motion was also premature as the situation anticipated by the respondent had, as yet, not occurred. I also declined to issue a declaration of principles with respect to disclosure at that time, as requested, for similar reasons.\n\nAs matters progressed in the case, it did not prove necessary to decide the balancing issue as the conflict between the competing security and liberty interests did not arise on a disclosure motion. The Ministers objected to the disclosure of certain telecommunications and physical surveillance reports as they were not relied upon in support of the SIR and did not, on their face, provide material evidence of an exculpatory nature. But they resisted this disclosure on the grounds of a lack of relevancy and not because their release would injure national security. Upon considering the matter and concluding that they could be relevant and were non-injurious, summaries of the reports were ordered disclosed to the respondent.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-64", + "id": "fc-57473-26", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 110", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 44–45", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In so deciding, the majority of the Supreme Court held at paragraph 45 of Vavilov, that “The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of the court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding”. The majority reconfirmed this point at paragraph 52, where it noted: [...] statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. [emphasis added]", - "current_to": "2021-08-05", + "text": "The closed evidentiary hearings in the fall of 2008 had proceeded on the understanding that the Ministers would present testimony from Service witnesses relating to both Mr. Almrei's alleged dangerousness and flight risk, for the purposes of the detention review, and to the reasonableness of the certificate. The respondent elected not to cross examine the Service witness who testified in the public hearing on matters going only to reasonableness on the understanding that he would be recalled for that purpose. For operational reasons, the Service witness was no longer available for the new dates scheduled when the reasonableness hearing was postponed. In the circumstances, the evidence of the witness relating to reasonableness was struck out and Ministers were granted leave to call a new Service witness to give evidence relating to the allegations at the public hearing. The same Service witness who testified in the closed hearings on detention gave evidence in the closed hearings on reasonableness.\n\nOn April 17, 2009 following a series of closed hearings respecting disclosure to the respondent, the Ministers filed a document entitled Public Disclosure of Information used in the Amended Security Intelligence Report (SIR). This included summaries of intercepted conversations and physical surveillance reports that were relied upon in the A/SIR, and information provided to CSIS by CIC and the CBSA that was used in the A/SIR.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-65", + "id": "fc-57473-27", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 111–112", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 46–49", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Thus, the Supreme Court determined that, as a matter of principle, the availability of limited appellate review does not foreclose the availability of judicial review. Indeed, such holding mirrors what subsection 18.5 of the Federal Courts Act already provides. This holding is important in the present case. While Supreme Court did not specifically address the issue now before us in Vavilov, it must have been aware that several statutes, like the Customs Act, which contain a limited right of appeal, also contain a privative clause. Thus, its failure to indicate that such a clause would bar access to judicial review is telling.\n\nMoreover, nowhere in Vavilov does the Supreme Court endorse the notion that privative clauses may bar access to judicial review or to review for particular sorts of issues. A complete bar on the availably of judicial review for any type of issue would offend the rule of law as the Supreme Court noted in Dunsmuir, a holding that was specifically endorsed in Vavilov at para. 24. Further, the Court in Dunsmuir and Vavilov did not overturn the previous decades-old case law determining that what were previously characterized as patently unreasonable factual errors, formerly called jurisdictional, remain reviewable, albeit now under the reasonableness standard.", - "current_to": "2021-08-05", + "text": "On April 24, 2009 the Ministers filed documents entitled Disclosure of Information in the Charkaoui II Production. This consisted of summaries of intercepted communications involving Mr. Almrei between September 12, 2001 and October 18, 2001 together with an overview summary of physical surveillance reports concerning Mr. Almrei between August 1999 and October 2001.\n\nPublic evidence hearings were conducted over the course of 18 days in Toronto between April 27, 2009 and May 27, 2009. The testimony will be described below. On six occasions during those hearings, the court held in camera and ex parte conferences in chambers with CSIS counsel and the Special Advocates to discuss disclosure and other issues relating to the closed information. A security cleared court reporter and registry officer were present to ensure the maintenance of a record.\n\nThe parties filed extensive written submissions on the factual and legal issues in these proceedings and public oral argument was heard in Toronto on July 2, 3, 6, 2009.\n\nClosed hearings were held in Ottawa to address questions which had arisen with respect to the reliability of classified information provided to the Court and to the Special Advocates. On April 3, 2009 I ordered CSIS to conduct a search for any documents or other records in the possession of the Service not included in the February 9, 2009 documents which contained an assessment of the credibility and reliability of the information provided by specified human sources. The Ministers filed additional information respecting the human sources on May 1, 2009 and, on May 15, 2009, a Supplementary Response to the April 3, 2009 Order. On May 25, 2009 the Ministers fled a Revised and Amended Source Exhibit.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-66", + "id": "fc-57473-28", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 113–114", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 50–52", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "To the contrary, the Supreme Court specifically contemplates in Vavilov that factual issues may give rise to unreasonable decisions. In providing further guidance as to the conduct of reasonableness review and the characteristics of a reasonable decision, the Supreme Court in Vavilov elucidated that there are two types of flaws that may render a decision unreasonable: either a failure of rationality in the reasoning process, where reasons are given, or the untenable nature of the decision in light of the legal and factual constraints that bear on it (at para. 101).\n\nFactual issues may give rise to an unreasonable decision under either type of flaw. The majority indicated in respect of a failure of rationality in the reasoning process, quoting from Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 and Southam at paragraph 102 of its reasons in Vavilov, that a reviewing court “must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. Clearly, this contemplates a decision-maker’s treatment of factual issues.", - "current_to": "2021-08-05", + "text": "On June 3, 2009, I issued a confidential direction to the Ministers and CSIS for production to the Court and the Special Advocates of copies of documents and other records from the CSIS human source files and instructions concerning a review of the files. On June 9, 2009 I ordered production of the original source exhibits filed with the Court in the prior certificate proceedings. On June 17, 2009, an Order was issued for production of the source exhibits sworn in support of warrants issued in 2000 and 2001 relating to the respondent. That material was delivered and the Ministers filed a document entitled a “Source Précis” on June 22, 2009 containing additional and revised information.\n\nExamination and cross-examination of service witnesses with respect to issues arising from these documents and, more generally, with respect to the closed information relied upon by the Ministers in the A/SIR, took place in Ottawa between June 22 and 26, 2009. Closed oral submissions were heard in Ottawa on July 27-28, 2009.\n\nOn July 24, 2009 the Special Advocates brought a motion in the closed proceedings to have the security certificate quashed on the grounds that it was an abuse of the Court’s process. The Ministers filed their written response on August 21, 2009. The respondent was informed of this on August 26, 2009. Reply submissions were received from the Special Advocates on September 4, 2009. While I deal with that motion in greater detail in my closed reasons due to the sensitive nature of the information referenced, I will also touch on it in these reasons.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-67", + "id": "fc-57473-29", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 115–116", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 53–55", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The Court likewise contemplated that failure to reasonably address factual issues might lead to an untenable result. The majority commented on this point as follows at paragraph 126: [126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.\n\nThus, under the reasonableness standard of review delineated in Vavilov, factual determinations can be the subject of review. In light of this, I do not believe that one can read the dicta in the case as endorsing the notion that privative clauses are to be henceforth read as barring access to judicial review for all factual issues. This is particularly so in light of the limited role afforded to privative clauses by the Supreme Court over the last several decades and the recognition by that Court that the rule of law requires review for factual errors, the most serious of which were formerly called jurisdictional. Such errors now come within the ambit of unreasonable errors.", - "current_to": "2021-08-05", + "text": "A review of the release conditions was begun on July 28, 2009 and continued in a public hearing on September 14, 2009. At that time, counsel for the Ministers advised that they wished to present information to the Court in a closed hearing. The proceedings were adjourned for closed hearings, conducted over the following two weeks during which the Court considered and authorized the disclosure of public summaries of a new CSIS threat assessment and a CBSA risk assessment. In the course of those hearings, additional issues arose which required the postponement of the public condition review proceedings. At the request of the respondent, on October 5, 2009 they were adjourned sine die pending the outcome of the reasonableness determination. LEGAL FRAMEWORK\n\nThe relevant legislative provisions for the purposes of this case are set out in Divisions 4 and 9 of Part 1 of IRPA. Division 4 sets out the rules for determining, in general, inadmissibility to Canada. Division 9 deals with certificates and the protection of information. It will be necessary also to touch briefly on sections of the Criminal Code and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.\n\nIt is well established that non-citizens do not have an unqualified right to enter or remain in the country: Chiarelli v. Canada (Minister of Citizenship and Immigration), [1992] 1 S.C.R. 711, [1992] S.C.J. No. 27. Permanent residents enjoy a qualified right to remain so long as they comply with any conditions imposed under the Regulations enacted under the Act; foreign nationals who are not permanent residents may be permitted to remain only on a temporary basis.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-68", + "id": "fc-57473-30", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 117", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 56–57", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "This does not mean that privative clauses have been rendered meaningless. Rather, they are part of the relevant statutory framework – an important contextual factor in determining the parameters of a reasonable decision according to Vavilov and the case law of this Court – and such clauses highlight the deferential nature of reasonableness review for decisions falling within the ambit of the clauses. I do not believe there is any other way to reconcile the collapsing of the patent unreasonableness and reasonableness standards of review into a single standard of reasonableness other than to recognize that review is available under the reasonableness standard for what were formerly characterized as patently unreasonable errors, which include serious factual errors, even in the face of a privative clause.", - "current_to": "2021-08-05", + "text": "Parliament has the constitutional authority to define the terms under which non-citizens, such as Mr. Almrei, may enter and stay in Canada and the Executive has the duty to enforce those terms and in doing so, may exercise considerable discretion, subject to the principles of fairness, to determine whether it is advisable for a non-citizen to be removed. Deportation does not, in itself, violate a non-citizen’s rights under the Charter: Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, [2005] S.C.J. No. 31, at paragraph 56. But actions associated with the deportation of a non-citizen, such as the procedures employed in the certificate process, may do so: Charkaoui I, above at paragraph 65.\n\nBoth permanent residents and foreign nationals are inadmissible to Canada for security concerns, for violating human or international rights, serious criminality, organized criminality or for misrepresentation (Division 4 of IRPA – Inadmissibility). Security certificates may only be issued in respect of a permanent resident or foreign national. Inadmissibility", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-69", + "id": "fc-57473-31", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 58–59", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "This view is shared by Professor Paul Daly, who has written extensively on administrative law matters. In a blog post entitled “Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review” (17 November 2020), online (blog): Administrative Law Matters , he explained the following: Let me put the difficulty in stark terms. There is nothing, on the face of Vavilov, to prevent a legislature from eliminating reasonableness review. As the majority puts it, “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.” But the “rule of law” here means only that limited class of cases in which correctness review applies to allow the courts to furnish a final, definitive answer to a question in the interests of uniformity. As long as the courts are able to review constitutional questions, questions of central importance to the legal system or questions of overlapping jurisdiction for correctness, nothing seems to stand in the way of legislation to eliminate reasonableness review. This is not merely a theoretical difficulty. There are a couple of ways in which reasonableness review could be eliminated, directly or indirectly. In Alberta, s. 539 of the Municipal Government Act provides: “No bylaw or resolution may be challenged on the ground that it is unreasonable”. Meanwhile, in various provincial statutes, and, most famously, British Columbia, patent unreasonableness has been prescribed as the standard of review of some types of administrative action.", - "current_to": "2021-08-05", + "text": "Section 34 of IRPA identifies those persons who are inadmissible on security grounds. It reads as follows: s.34 (1) A permanent resident or a foreign national is inadmissible on security grounds for art.34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).\n\nWhere a security certificate asserts inadmissibility on more than one ground, each ground must be read disjunctively. If any one ground is established, the certificate is to be determined to be reasonable: Zundel (Re), 2005 FC 295, [2005] F.C.J. No. 314, at paragraphs 16 and 17.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-70", + "id": "fc-57473-32", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 60–62", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Indirectly, reasonableness review could be ousted by providing for a limited right of appeal. For example, the Federal Court of Appeal has interpreted various provisions relating to statutory appeals on issues of “law or jurisdiction” as excluding the consideration of factual matters. Where an appellate court whose jurisdiction is circumscribed in this way refuses to grant leave or finds that a matter raised by a party is outside the scope of the appeal clause, reasonableness review is unavailable. This would be a simple solution and would provide significant clarity. Here, however, I would invoke Einstein: everything should be made as simple as possible, but no simpler. Appearances, moreover, may be deceptive. On the face of it, Vavilov would permit legislative ouster of reasonableness review. But only on the face of it. Indeed, Hamlet springs to mind: “God hath given you one face, and you make yourself another.” First, in the same paragraph that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.” The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.", - "current_to": "2021-08-05", + "text": "In this case, paragraphs 34(1) (a) (b) and (e) of IRPA have no application. The allegations against Mr. Almrei are that he constitutes a danger to the security of Canada as set out in paragraph 34(1)(d), has engaged in terrorism contrary to paragraph 34(1)(c) and is a member of an organization as described in paragraph 34(1)(f). He is said to have engaged in terrorism only in a broad sense in that by participating in the Afghan jihad and supporting Ibn al Khattab’s Chechen jihad, he associated with and supported persons who are believed on reasonable grounds to have committed terrorist acts and is therefore complicit in those acts. He is alleged to share the ideology of Osama Bin Laden and has or is prepared to offer material support to an organization, the “Bin Laden Network” which has engaged in terrorism. There is no allegation that Almrei has directly engaged in any act of violence that might endanger the lives or safety of any person in Canada.\n\nThese matters are mixed questions of fact and law: Poshteh v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2005 FCA 85, [2005] F.C.J. No. 381 (“Poshteh”). It is a question of law what the statute or legal principle means and a question of fact what the evidence discloses. A mixed question of fact and law requires the application of the statute or principle to the facts.\n\nIn this case, legal issues include the interpretation of the terms \"member\" and “organization” in paragraph 34(1)(f) and “danger to the security of Canada” in paragraph 34 (1) (d). It is then a question of mixed question of fact and law whether Almrei falls within the scope of those provisions: Mendoza v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 934, 317 F.T.R. 118, at paragraphs.12-14. “Member of an Organization”", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-71", + "id": "fc-57473-33", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 63–64", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’” If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov. The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review. With respect, the insistence that correctness review – and only correctness review – must be constitutionally entrenched is, and has been, misplaced. Julius Grey put the point with admirable clarity in the mid-1980s: What Crevier does entrench is some degree of review. The courts will not interfere at the same moment on all issues or against all tribunals. However, they now clearly possess a constitutional right to step in when the bounds of tolerance are exceeded by any decision-maker. Clearly, the precise location of the bounds of tolerance is left to the court and that is quite consistent with the general trends in modern administrative law. In short, the “bounds of tolerance” are supplied in Vavilov by reasonableness review. Inasmuch as constitutional questions, questions of central importance to the legal system and questions of overlapping jurisdiction have a “constitutional dimension,” correctness review is also constitutionally entrenched.", - "current_to": "2021-08-05", + "text": "There is no definition of these terms in the statute and the courts have not attempted a precise and exhaustive interpretation of their meaning. As was stated by Justice Rothstein in Canada (Minister of Citizenship and Immigration) v. Singh 1998 CanLII 8281 (F.C.), (1998), 151 F.T.R. 101 (F.C.T.D.), at paragraph 52: The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of subparagraph 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term \"member\" to be given an unrestricted and broad interpretation.\n\nThe Federal Court of Appeal cited this passage with approval in Poshteh, above, at paragraphs 27 to 29. In Chiau v. Canada (Minister of Citizenship and Immigration), [2001] F.C. 297, [2000] F.C.J. No. 2043, the Court of Appeal held that being a member means simply \"belonging\" to an organization. This Court has consistently applied an unrestricted and broad interpretation to the meaning of \"member\": Ahani (Re), (1998), 146 F.T.R. 223, [1998] F.C.J. No. 507; Ikhlef (Re), 2002 FCT 263, [2002] F.C.J. No. 352; Harkat (Re), 2005 FC 393, [2005] F.C.J. No. 481.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-72", + "id": "fc-57473-34", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 65–67", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Indeed, this description of the constitutional foundations of Vavilov provides an explanation for an otherwise mysterious passage in the majority reasons. Having established institutional design as a key, grounding concept in the selection of the standard of review, the majority considered limited rights of appeal – such as those restricted to questions of law or jurisdiction – and observed: “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.” If respect for institutional design choices is so important, why can unappealable aspects of decisions nonetheless be judicially reviewed? The answer is that reasonableness review is constitutionally entrenched. A limitation of a right of appeal cannot, constitutionally, effect the elimination of reasonableness review of aspects of a decision. How, then, should courts address direct and indirect limitations on reasonableness review post Vavilov? Consider first direct limitations, that is those imposed by eliminating grounds of review or specifying a deferential ground of review. Here, the legislative language can be taken as an indication that the decision-maker should benefit from a wider margin of appreciation. As was the case with privative clauses prior to Vavilov, they would not be enforced to the letter, but their spirit would be respected. Vavilovian reasonableness review is capacious enough to accommodate this solution.", - "current_to": "2021-08-05", + "text": "The meaning of \"organization\" has attracted less judicial attention as the issue in most cases in which the term is applied is not whether the organization actually exists, which is normally not in dispute, but whether it has been responsible for terrorist acts: see for example Jalil v. Canada (Minister of Citizenship and Immigration), 2007 FC 568, [2007] F.C.J. No. 763. In this case, the existence of a “Bin Laden Network”, as broad as the Ministers characterize it, is a matter of controversy between the parties.\n\nIt is accepted in the jurisprudence that terrorist organizations are “loosely structured groups that do not apply the niceties of agency law”, as Justice Rothstein said in Husein v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1375 at paragraph 5. In Ikhlef, above, at paragraph 64, Justice Blais, as he was then, referred to an organization as \"a community of interests and thoughts and regular meetings with persons who were pursuing the same goals\".\n\nIn Thanaratnam v. Canada (Minister of Citizenship and Immigration), 2004 FC 349, [2004] 3 F.C.R. 301, rev’d on other grounds, 2005 FCA 122, [2006] 1 F.C.R. 474 (Thanaratnam FC) at paragraph 31, Justice James O’Reilly identified the characteristics of an organization as “identity, leadership, a loose hierarchy and a basic organizational structure”. In Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198 at paragraph 38, Justice Linden endorsed these factors as helpful in making a determination under s. 37 but considered that no one of them is essential. He held that an “unrestricted and broad” interpretation should be given to “organization” (at paragraph 36).", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-73", + "id": "fc-57473-35", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 68–69", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In Vavilov, the majority recognized that “the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” may differ from case to case, sometimes allowing “greater flexibility”, sometimes “tightly constraining the decision maker”. Where a ground of review has been eliminated, or patent unreasonableness specified as the standard of review, these statutory provisions can be taken as “language chosen by the legislature” to give “greater flexibility” to the decision-maker. In this way, reasonableness review is preserved and the constitutionally entrenched core minimum of judicial review safeguarded. This is a fairly simple solution, which takes advantage of the thick conception of reasonableness review set out in Vavilov, and provides crystalline clarity about the scope of judicial review. The second question, of indirect limitations, is slightly more complex. Where an appeal is limited to questions of law or jurisdiction, it is arguable that any issue relating to the “constitutional duty” to ensure that administrative decision-makers remain within the boundaries of their authority will fall within the appeal clause. Historically, this was certainly the case, as such clauses respected the constitutional boundaries set out in Crevier. However, the core constitutional minimum I have ascribed to reasonableness review includes matters which go beyond questions of law or jurisdiction.", - "current_to": "2021-08-05", + "text": "There is no temporal nexus in the statute between membership in the organization and the timeframe in which terrorist acts may be attributed to the group. A current lack of dangerousness does not avail the named person if he is found to be a member. The question is whether the person is or has been a member of that organization, not whether the person was a member when the organization carried out its terrorist acts: Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1457, [2006] F.C.J. No. 1826, at paras. 11-13; Jaballah (Re), 2006 FC 1230, [2006] F.C.J. No. 1706, at para. 38; Sittampalam, above, at paragraph 20.\n\nThe effect of the statute and this line of authority is, therefore, that if I find that Mr. Almrei was at any time a member of an organization that there are reasonable grounds to believe has engaged in terrorism at some time in the past, he is inadmissible and a finding that he is no longer a member would be to no avail. The question may remain open whether the organization which committed the terrorist acts is the same organization as that to which the member belonged at the relevant times: Gebreab v. Canada (Minister of Public Safety and Emergency Preparedness) 2009 FC 1213. “Terrorism”", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-74", + "id": "fc-57473-36", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 118–119", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 70–71", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "For example, the harsh consequences a decision visits upon an individual as a matter of fact – perhaps leaving them homeless – would probably not fall within a limited appeal clause; this would be problematic, as it would limit the courts’ ability to police the boundaries of administrative decision-makers’ authority and ensure that exercises of state power are publicly justified, to exclude any such issues. Similarly, the responsiveness of a decision to the arguments of the parties and evidence presented is a key feature of Vavilovian reasonableness review but again would not necessarily come within the scope of a limited appeal clause. The contemporaneity requirement might also be in play in some cases, as on appeal a decision-maker may seek to defend its position by relying on documents and other material not referenced in its decision; on a statutory appeal, the court’s analysis will be on the correctness of the outcome, whereas on reasonableness review, the question for the court will be whether the reasons adequately justify the outcome. These considerations help to explain why the majority in Vavilov refused to accept that a limited appeal clause could oust judicial review of matters not falling within the clause. Doing so would be unconstitutional. [Footnotes omitted and emphasis added]\n\nThe foregoing approach, moreover, is consistent with section 18.5 of the Federal Courts Act, the statute that creates the right to judicial review before the Federal Courts. As noted, it provides that access to judicial review is barred only to the extent a right of appeal otherwise exists in respect of an issue.", - "current_to": "2021-08-05", + "text": "“Terrorism” is not defined in the statute. The term has also been given an unrestricted and broad interpretation in the jurisprudence. In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] S.C.J. No. 3 at paragraph 98, the Supreme Court defined the word, in the context of the former Act and, following the language of the International Convention for the Suppression of the Financing of Terrorism, as including: …any “act intended to cause death or serious bodily injury to civilians, or to any other person not taking an active part in the hostilities in a situation of armed conflict when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act”. This definition catches the essence of what the world understands by “terrorism”. Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. (Emphasis added)\n\nAny attempt to define “terrorism” in the immigration context must also now take into account the definition of “terrorist activity” found in subsection 83.01(1) of the Criminal Code: Soe v. Canada (Minister of Citizenship and Immigration), 2007 FC 671, [2007] F.C.J. No. 913. That definition is in two parts. The first part links the meaning of the term to the commission of certain listed offences enacted by Canada in the course of domestic ratification of international conventions and treaties against terrorism.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-75", + "id": "fc-57473-37", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 120–122", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 72–74", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The combined effect of this provision and the treatment of privative clauses in the case law of the Supreme Court of Canada leads to the conclusion that factual errors made by the CITT may be reviewed in the context of a judicial review application under the reasonableness standard. Conversely, errors of law are reviewable under the correctness standard in the context of a statutory appeal under section 68 of the Customs Act. Any overlap in proceedings could be addressed through joinder of an appeal with an application or other appropriate directions as might be required from time to time.\n\nI hasten to underline that the scope of review in respect of factual matters is limited, providing for intervention only in a narrow range of cases beyond those where there is a complete lack of evidence on a point. Thus, there should be relatively few cases where an overlap might occur.\n\nParagraph 18.1(4)(d) of the Federal Courts Act provides that erroneous factual findings may provide the basis for intervention only if the decision was based on them and if they were “made in a perverse or capricious manner or without regard to the material before” the decision maker. The statutory formulation of the test before the Federal Courts for unreasonable factual determinations is akin to what the Supreme Court said about the nature of unreasonable factual findings in Vavilov, where the majority noted at paragraph 126 that unreasonable factual determinations arise where the “… decision maker has fundamentally misapprehended or failed to account for the evidence before it”.", - "current_to": "2021-08-05", + "text": "The second part of the definition of terrorist activity in the Criminal Code, includes a number of elements which require proof of political, religious or ideological purpose, an intention to intimidate or compel action or inaction on the part of a government, organization or person and harmful consequences such as death, serious property damage or interference with essential services.\n\nThe motive clause of the definition, paragraph 83.01 (1) (b) (i) (A), was found to be unconstitutional by Mr. Justice Rutherford of the Ontario Superior Court in R v. Khawaja, [2006] O.J. No. 4245. That decision was expressly not followed by Mr. Justice Patillo of the same court in United States of America v. Nadarajah, [2009] O.J. No. 946, an extradition case. For the purposes of these proceedings, I do not consider it necessary to express an opinion on that issue.\n\nAs I understand the Ministers’ case, there are no allegations against Mr. Almrei that he committed any of the acts or omissions that would constitute an offence under either part of the Criminal Code definition. Rather the Ministers’ claim is that he engaged in terrorism indirectly by participating in jihad and in supporting terrorist acts committed by Afghans or Afghan Arabs in Afghanistan, Tajikistan, Dagestan and Chechnya. Armed conflict exemption", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-76", + "id": "fc-57473-38", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 75–76", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "As concerns, more specifically, the case law interpreting paragraph 18.1(4)(d) of the Federal Courts Act, in Rohm & Haas Canada Limited v Canada (Anti-Dumping Tribunal) (1978), 22 N.R. 175, 91 D.L.R. (3d) 212, Chief Justice Jacket defined the notion of perversity as “willfully going contrary to the evidence” (at para. 6). As for the criteria of “capriciousness” or of the finding’s being made without regard to the evidence, such would include circumstances where there was no evidence to rationally support a finding, (see, e.g. Stelco Inc. v. British Steel Canada Inc., [2000] 3 FC 282 (C.A.), 20 Admin. L.R. (3d) 159 at para. 22) or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings. As noted by Justice Evans in the oft-cited Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), [1999] 1 FC 53, 157 F.T.R. 35 at paragraphs 14-17: [14] It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual.", - "current_to": "2021-08-05", + "text": "Exempted from the Criminal Code definition of terrorist activity is conduct committed during an armed conflict and that, at the time and place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law. The armed conflict exemption is relevant in these proceedings only in so far as it might apply to the actions of Afghan mujahedin such as Abdul Rasul Sayyaf and to Afghan Arabs such as Ibn Khattab with whom Almrei was associated.\n\nAlthough the Public Summary does not include a direct characterization of Ibn Khattab as a terrorist, the Ministers’ submissions speak of his “terrorist activities” in Chechnya. Sayyaf is said to have been complicit in the commission of war crimes against the civilian population and to have sheltered and mentored terrorists who passed through his camps. Mr. Almrei’s contacts with Khattab and Sayyaf are proffered as evidence of his alleged “membership and complicity in terrorist activities”. The respondent submits that, to the extent that he was involved with Sayyaf and Khattab, and at the material times, if their activities are covered by section 83.01, he should also be covered by this exemption.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-77", + "id": "fc-57473-39", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 77–79", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made \"without regard to the evidence\": see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), 1994 CanLII 3532 (FC), [1995] 1 F.C. 741 (F.C.T.D.). [15] The Court may infer that the administrative agency under review made the erroneous finding of fact \"without regard to the evidence\" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.", - "current_to": "2021-08-05", + "text": "In Khawaja, above, Mr. Justice Rutherford considered that the acts falling within the exemption are only those ones which are considered by the laws of war to be legitimate during such a conflict. He noted that the provision is intended to remove from the ambit of the terrorism provisions of the Criminal Code, acts which are necessarily a part of war, so long as those war activities are conducted in accordance with the customary or conventional rules of war, stating at paragraph 127: The exception shields those who do acts while engaged in an armed conflict that would otherwise fit the definition of terrorist activity from prosecution as terrorists as long as the acts are within the internationally recognized principles governing warfare.\n\nThe Ministers submit that the activities of Sayyaf and Khattab at issue in this proceeding fall outside the armed conflict exemption as the exemption does not apply when the victims are persons not taking an active part in the conflict. They point to provisions of the Geneva Conventions and the Rome Statute which make it clear that terrorist activities are prohibited during armed conflict: Fourth Geneva Convention; Article 33; Protocol I, Article 51.2; Protocol II, Article 13.2. Causing terror to the civilian population is prohibited under international humanitarian law and constitutes a war crime under international criminal law: Prosecutor v. Stanislav Galić, Case No.IT-98-29-A (ICTY).\n\nThe issue is, therefore, a question of mixed fact and law whether acts committed in the course of an armed conflict would fall within the legitimate scope of what is permitted under international law. “Danger to National Security”", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-78", + "id": "fc-57473-40", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 80", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact \"without regard to the evidence\": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", - "current_to": "2021-08-05", + "text": "The meaning of “danger to national security”, as the expression appeared in the former Act, was discussed by the Supreme Court in Suresh, above. The Court observed, at paragraph 83, that the phrase was not synonymous with membership in a terrorist movement although the two concepts may be related, and, at paragraph 84, that it does not mean the same as danger to the public or any member of the public. But paragraph 34 (1) (d) calls for a present finding of dangerousness.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-79", + "id": "fc-57473-41", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 124", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 81", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Turning now to the relevant case law of this Court, as noted, an issue very similar, if not identical, to the present was before the Court in PSAC. There, the Federal Public Sector Labour and Employment Board (the FPSLREB) intervened in a judicial review application from one of its decisions to argue that the combined effect of the privative clause in its constituent statute and the decreased role of jurisdictional error in the Supreme Court’s administrative law jurisprudence was to render its legal and factual determinations largely unreviewable. The relevant privative clause, identical to the privative clause in the constituent statute of the Canada Industrial Relations Board, is set out in subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, enacted by the Economic Action Plan 2013 Act, No. 2, S.C. 2013, c. 40. It provides: No review by court Impossibilité de révision par un tribunal 34 (1) Every order or decision of the Board is final and is not to be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. 34 (1) Les décisions et ordonnances de la Commission sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.", - "current_to": "2021-08-05", + "text": "Subject to those qualifications, the Court said at paragraph 85: [w]e accept that a fair, large and liberal interpretation in accordance with international norms must be accorded to “danger to the security of Canada” in deportation legislation. We recognize that “danger to the security of Canada” is difficult to define. We also accept that the determination of what constitutes a “danger to the security of Canada” is highly fact-based and political in a general sense. All this suggests a broad and flexible approach to national security and, as discussed above, a deferential standard of judicial review. Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision. And at para. 90: These considerations lead us to conclude that a person constitutes a \"danger to the security of Canada\" if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be \"serious\", in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible. Burden of Proof", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-80", + "id": "fc-57473-42", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 82–83", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "This Court roundly rejected the submissions of the FSPLREB, holding at paragraphs 23-33 as follows: [23] First, they fly in the face of the myriad decisions of this Court and of the Supreme Court of Canada in which decisions of the Board, the CIRB or their predecessors, involving alleged errors of law, fact or mixed fact and law, have been reviewed under the deferential reasonableness standard (or previously under the patent unreasonableness standard) despite the presence of the privative clauses in subsection 34(1) of the FPSLREBA and subsection 22(1) of the Canada Labour Code. The 43 cases listed in the Appendix to these reasons have been decided on this basis in the last two years. For each prior year, several additional cases would be added to the list. Thus, contrary to what the Board asserts, this issue has been definitively settled by the jurisprudence. [24] Second, as this Court held in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at para. 18, the term “jurisdiction”, when used in a provision like paragraph 18.1(4)(a) of the Federal Courts Act, must be understood in its appropriate historical context. This is in accordance with the principles of statutory interpretation, which require a court to have regard to the appropriate context when interpreting legislation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, 221 N.R. 241; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27.", - "current_to": "2021-08-05", + "text": "As stated by the Federal Court of Appeal in Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399, at paragraph 16, the burden of proof, standard of proof and the quality of the evidence necessary to meet the standard of proof are three different factual realities and legal concepts which should not be confused. In this case, there is no dispute between the parties that the evidentiary burden and the legal burden of persuasion rest with the Ministers. Quality of the Evidence\n\nThe quality of the evidence required to meet the standard of proof is set out in paragraph 83(1)(h) of the statute. That provision authorizes the judge to receive into evidence anything that, in the judge’s opinion, is “reliable and appropriate” (“…digne de foi et utile”), even if it is inadmissible in a court of law, and to base a decision on that evidence. Thus, the best evidence rule does not apply and hearsay evidence such as that provided to the Service by a human source or third party information collected by a foreign or domestic intelligence or law enforcement agency may be relied upon: Almrei (Re), 2009 FC 3, [2009] F.C.J. No. 1, at paragraph 53.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-81", + "id": "fc-57473-43", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 84–85", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "[25] In 1990, when Parliament adopted subsection 18.1 of the Federal Courts Act, errors of jurisdiction in Canadian administrative law were understood to include errors of law, in circumstances where the Board was required to offer a correct interpretation, and patently unreasonable legal interpretations, as was noted in P.S.A.C. v. C.F.P.A.; see also C.A.I.M.A.W. v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] 2 S.C.R. 983 at pp. 1003-1004, 102 N.R. 1. Such errors were also understood to include findings of fact that would be caught by paragraph 18.1(4)(d) of the Federal Courts Act, as was noted in C.U.P.W. v. Healy. Thus, properly read in context, “jurisdictional errors” for purposes of setting forth a ground (as opposed to a standard) of review within the meaning of subsection 18.1(4) of the Federal Courts Act include situations where the Board makes an unreasonable legal interpretation or an error of fact within the ambit of paragraph 18.1(4)(d) of that Act. [26] Third, contrary to what the Board asserts, the decisions of the Supreme Court of Canada in Dunsmuir and Khosa cannot be understood to narrow the range of Board decisions that may be judicially reviewed. Rather, they hold that a common standard of review framework is to be applied to all federal administrative decision-makers and that, unless one of the exceptions discussed in Dunsmuir obtains, the applicable standard of review is reasonableness. This is evident both from the reasons of the majority in Khosa, at paragraphs 43 to 51 and from the reasons of Rothstein J. at paragraph 111 in the same case, where he discussed the import of the privative clause found in section 22 of the Canada Labour Code.", - "current_to": "2021-08-05", + "text": "Both official language versions of the statute are authoritative and require consideration of the shared meaning of the two texts: R. v. Daoust, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7. \"Appropriate\" (\"utile” in French) was the term used in the pre-Bill C-3 statute and in this context has the sense of “proper”, “fitting” and “useful”: Shorter Oxford English Dictionary, Fifth Edition; In French, the word “utile” means “worthwhile”, “satisfies a need”; Le Petit Robert, 2006. I read the two versions as requiring more than mere relevance. Evidence may be relevant but not useful or fitting for a variety of reasons including the manner in which it was obtained. This is reinforced where the term is coupled with \"reliable\" (“digne de foi”) which imports a notion of “trustworthy”, “safe���, “sure”, “worthy of belief”. In the criminal law context, the manner in which evidence was obtained may make it unreliable as, for example, evidence obtained through the use of torture, and may result in the denial of fair trial rights: R. v. Hape, 2007 SCC 26, [2007] S.C.J. No. 26, at paragraph 109; R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57, at paragraph 47. Parliament has expressly ordained that such information shall not be considered reliable and appropriate in certificate proceedings: ss. 83(1.1).\n\nDivision 9 repeatedly refers to “information and other evidence”. For the purposes of this part of IRPA, section 76 defines “information” (“renseignements”) as security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state or an international organization or an institution of such foreign state or organization. Standard of Proof", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-82", + "id": "fc-57473-44", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 86–89", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "He there wrote as follows: Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the [Federal Courts Act]. Where the privative clause applies, i.e. with respect to s. 18.1(4)(c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy. In such cases, the Dunsmuir analysis applies. There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud. Correctness review applies in these cases. [27] While the majority in Khosa disagreed that the Dunsmuir analysis applied only to paragraphs 18.1(4)(c) to (f) of the Federal Courts Act, they did not disagree that issues falling within the purview of paragraphs 18.1(4)(c) to (f) are subject to the Dunsmuir analysis. Thus, when read in their appropriate context, subsection 34(1) of the FPSLREBA and subsection 18.1(4) of the Federal Courts Act do not preclude review in the instant cases. [28] Fourth, the cases on which the Board relies enumerated in paragraph 14 of these Reasons do not constitute a binding ruling on this issue. Rather, to the extent these cases may contain passages that might support the Board’s interpretation, the Court’s comments are made only in passing and do not settle the issue. The relevant authorities, which do settle the issue, are P.S.A.C. v. C.F.P.A. and C.U.P.W. v. Healy, which, as already noted, directly contradict the Board’s arguments. Also relevant are the multitude of cases where this Court has reviewed under the reasonableness standard decisions like those challenged in this application.", - "current_to": "2021-08-05", + "text": "Under subsection 77(1), the Ministers may only issue a warrant for the arrest and detention of a person named in a certificate if they have reasonable grounds to believe that the person is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal (IRPA, s.81).\n\nUnder the marginal note “Rules of Interpretation”, section 33 of IRPA provides that the facts that constitute inadmissibility under section 34 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.\n\nThe Supreme Court of Canada has determined that “reasonable grounds to believe” requires an objective basis for the belief in the alleged facts based on compelling and credible information: Suresh, above, at para. 90; R v. Zeolkowski, [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, at page 1385.\n\nJustice Dubé in Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.), [1998] F.C.J. No. 131, at paragraph 27, described the standard of proof required to establish “reasonable grounds” as: … more than a flimsy suspicion, but less than the civil test of balance of probabilities. And, of course, a much lower threshold than the criminal standard of \"beyond a reasonable doubt\". It is a bona fide belief in a serious possibility based on credible evidence.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-83", + "id": "fc-57473-45", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 90–92", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Thus, the case law relied upon by the Board is not determinative. [29] Fifth, contrary to what the Board asserts, its interpretation would not lead to greater expedition. Under the Board’s approach, this Court would be required to decide as a preliminary issue what paragraph in subsection 18.1(4) of the Federal Courts Act applies to each argument advanced in an application for judicial review and to determine the Court’s jurisdiction based on the characterization of issue. This sort of formalistic preliminary question-type analysis harkens back to the now abolished division in judicial review matters that limited review under the former section 28 (as opposed to section 18) of the Federal Courts Act to decisions made on a judicial or quasi-judicial basis: see Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177 at p. 197, 58 N.R. 1 (per Wilson J.); Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at pp. 895-902, 100 N.R. 241. This requirement led to convoluted, costly and lengthy debates about the character of a decision under review that did little to advance the substance of litigation, and these requirements were consequently abolished in the 1990 amendments to the Federal Courts Act: see An Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, s. 8. To adopt the Board’s approach would reintroduce similar debates and delays in the judicial review process, which are antithetical to the sound labour relations that the FPSLRA is designed to foster. Thus, the Board’s interpretation would in fact end up undermining the purpose of the Act.", - "current_to": "2021-08-05", + "text": "Justice Simon Noël further explained the standard as follows in Charkaoui (Re), 2005 FC 248, [2005] F.C.J. No. 269, at paragraph 30: The \"reasonable grounds\" standard requires more than suspicions. It also requires more than a mere subjective belief on the part of the person relying on them. The existence of reasonable grounds must be established objectively, that is, that a reasonable person placed in similar circumstances would have believed that reasonable grounds existed:\n\nThe standard is, therefore, somewhere between \"mere suspicion\" and the balance of probabilities. It is higher than the standard applied in the control order cases in the United Kingdom which requires reasonable grounds for suspecting involvement in terrorism related activity: see for example Secretary of State for the Home Department v. AF and Another, [2009] UKHL 28 [SSHD v. AF], at paragraphs 62-63. The habeas corpus proceedings relating to Guantanamo detainees are being conducted in the U.S. District Court on a preponderance of the evidence standard: Al Mutairi v. United States, 2009 WL 2364173, (D.D.C. July 29, 2009).\n\nThe Ministers contend that the Court’s determination should also be made on the reasonable grounds to believe standard. The respondent’s position is that it should be the normal civil standard of proof on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] S.C.J. No. 54, at paragraph 40. He argues that the amendments contained in Bill C-3 which have changed the Court’s role from a review of the reasonableness of the Ministers' opinion to a determination of the present reasonableness of the certificate calls for a higher standard. Moreover, he contends, application of the lower standard would not satisfy the fundamental justice requirements of section 7 of the Charter.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-84", + "id": "fc-57473-46", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 93–94", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "[30] Finally, contrary to what the Board says, its interpretation runs afoul of the rule of law concerns that provide the constitutional underpinning for judicial review of administrative action by the independent judicial branch: see Dunsmuir at paras. 27-29; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para. 13, 421 D.L.R. (4th) 381. Given recent pronouncements by the Supreme Court of Canada, the scope of jurisdictional issues that arise in administrative law cases is exceedingly limited, if such issues may still even be said to exist at all. Although the category of true questions of jurisdiction was recognized in Dunsmuir at para. 59 as attracting correctness review, the Supreme Court has repeatedly emphasized its narrow and exceptional nature: see, for example, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 at para. 26; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3 at para. 32. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 at para. 41, 36 Admin L.R. (6th) 1, the Supreme Court cast doubt on the category’s future: 41. The reality is that true questions of jurisdiction have been on life support since Alberta Teachers. No majority of this Court has recognized a single example of a true question of vires, and the existence of this category has long been doubted.", - "current_to": "2021-08-05", + "text": "In reviewing the role of the designated judge in certificate cases, the Supreme Court has noted that as IRPA subsection 82(1), now section 81, provided that the Ministers’ decision to detain a permanent resident was based on “reasonable grounds to believe”, it is “…logical to assume…” that the same standard would be used by the judge reviewing the detention: Charkaoui 1, para. 39. The Ministers' position, contested by the respondent, is that this is conclusive authority for the application of the same standard to the reasonableness determination. I am not so sure. The Supreme Court’s reference to “reasonableness” as the standard for determination of the certificate issue in the same paragraph appears to recognize that there is a difference.\n\nWhere the legislation requires “reasonable grounds to believe” a certain fact, the standard has been interpreted as meaning that proof of that fact itself is not required. Evidence that falls short of establishing the fact will be sufficient if it is enough to show reasonable grounds for a belief in the fact: Canada v. Jolly, [1975] F.C. 216 (C.A.) at pp. 225-226.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-85", + "id": "fc-57473-47", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 125–126", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 95", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Absent full submissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will only reiterate this Court’s prior statement that it will be for future litigants to establish either that the category remains necessary or that the time has come, in the words of Binnie J., to “euthanize the issue” once and for all (Alberta Teachers, at para. 88). [31] As the Board acknowledges, the recognition that there are few, if any, questions of jurisdiction could result in its decisions being largely unreviewable. This cannot be. [32] In Dunsmuir, the Supreme Court of Canada underscored that judicial review must be available as a constitutional imperative and cannot be ousted by a privative clause. At paragraph 31, Bastarache and LeBel JJ., writing for the majority, stated: 31. The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). [33] Thus, for all the foregoing reasons, contrary to what the Board asserts, its decisions in the instant cases are amenable to review by this Court.\n\nIn my view, the foregoing is determinative and binding on this panel in light of the principles applied by this Court regarding the binding nature of decisions reached by a panel of the Court on subsequent panels (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, at paras. 8-10).", - "current_to": "2021-08-05", + "text": "Jolly was a case under s. 5(1) of the former Act, in which the Federal Court of Appeal addressed the inadmissibility of a person who was a member of an organization or group “concerning which there were reasonable grounds for believing that it promotes or advocates … subversion by force”. At paragraph 18 the Court stated: … But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression \"reasonable grounds for believing\" implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. At paragraph 22, the Court of Appeal observed that: Subsection 5(l) does not prescribe a standard of proof but a test to be applied for determining admissibility of an alien to Canada, and the question to be decided was whether there were reasonable grounds for believing, etc., and not the fact itself of advocating subversion by force, etc. No doubt one way of showing that there are no reasonable grounds for believing a fact is to show that the fact itself does not exist. But even when prima facie evidence negativing the fact itself had been given by the respondent there did not arise an onus on the Minister to do more than show that there were reasonable grounds for believing in the existence of the fact.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-86", + "id": "fc-57473-48", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 127–128", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 95–96", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "On the other hand, the decisions in Emerson Milling and Bell Canada are not dispositive. Both dealt with the scope of errors that could be reviewed in the context of an appeal for issues of law as opposed to the issue now before us, namely, whether an application of judicial review remains open for issues of fact in the face of a privative clause. Moreover, as my colleague notes, the legislation involved in Emerson Milling and Bell Canada allowed for appeals to the federal cabinet in addition to the statutory appeal to this Court. Such provisions might well have rendered access to judicial review for factual or policy issues unavailable in Emerson Milling and Bell Canada under section 18.5 of the Federal Courts Act.\n\nFinally, the case law of this Court in cases of this nature and, indeed, the decision of the Supreme Court of Canada in Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski], considered both legal issues and issues of mixed fact and law in the context of statutory appeals, as my colleague notes at paragraph 21 of his reasons. That this occurred is not surprizing given that the Supreme Court in its administrative case law decided prior to Vavilov had removed all distinctions between statutory appeals and applications for judicial review. However, by reasons of the new edict that appeals are henceforth to be decided under appellate as opposed to judicial review principles, it is now necessary that the small range of reviewable factual issues that do not constitute errors of law as they go slightly beyond findings based on a lack of evidence be pursued by way of an application for judicial review.", - "current_to": "2021-08-05", + "text": "In short as applied to this case it seems to me that even after prima facie evidence negativing the fact had been given it was only necessary for the Minister to lead evidence to show the existence of reasonable grounds for believing the fact and it was not necessary for him to go further and establish the fact itself of the subversive character of the organization… (Emphasis added)\n\nThe passage quoted from paragraph 18 of Jolly has been relied upon in subsequent jurisprudence as setting the bar below the civil standard. I would have no difficulty with that in the context of a judicial review of the adequacy of the Minister’s grounds for making an inadmissibility determination. But that is not this case. The Court is assessing the reasonableness of the certificate on all of the evidence. In my view, the notion in paragraph 22 of Jolly that the Minister need not meet a prima facie case to the contrary can not be relied upon post-Charkaoui I and the enactment of Bill C-3. Jolly was decided in an era prior to the Charter when public interest immunity was absolute and judges did not examine classified information.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-501244-87", + "id": "fc-57473-49", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 129–131", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 97–99", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "From the foregoing, it follows that this appeal should be dismissed as the issues of mixed fact and law raised by the appellant cannot be raised in the context of an appeal under section 68 of the Customs Act. However, even if the appellant had filed an application for judicial review, the same result would obtain as the alleged errors of mixed fact and law raised by the appellant fall well short of the sort of error that might lead to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn this regard, as my colleague notes, the appellant challenges the CITT’s consideration of the practices and procedures of the WCO Committee and of the opinion of an interior designer who testified as a witness. Consideration of these matters cannot be said to be “perverse” and each was rationally connected to the issues before the CITT. The CITT also adequately explained the use it made of such evidence in its reasons. Its consideration of the matters impugned by the appellant accordingly would not give rise to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn light of the foregoing, I would dismiss this appeal, with costs. “Mary J.L. Gleason” J.A. “I agree. René LeBlanc J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2021-08-05", + "text": "In two cases dealing with an exclusion clause employing the phrase, “serious reasons to consider”, the Federal Court of Appeal considered that it was analogous to “reasonable grounds to believe” and that both were less than the civil standard: Ramirez v. Canada, [1992] 2 F.C. 306 (C.A.); Moreno v. Canada, [1994] 1 F.C. 298 (C.A.). In Moreno, Justice Robertson said, at paragraph 17, that this type of legislative language should be regarded as a threshold rather than a standard of proof. In his view, as stated at paragraphs 21-22, not all exclusion clause issues could be resolved by the “less than civil law” standard and that it should be confined to questions of fact. This conclusion was endorsed by the Supreme Court of Canada in Mugasera, above, at paras. 114-116.\n\nThere is support in the jurisprudence for the position advanced by the respondent that the standard of proof should be the normal civil standard. In Singh, above, at para. 3, the Court held that the legal standard of proof was a balance of probabilities citing two Federal Court decisions under the former statute: Farahi-Mahdavieh (Re), (1993), 63 F.T.R. 120, [1993] F.C.J. No. 285 and Al Yamani v. Canada, (1995), 103 F.T.R. 105, [1995] F.C.J. No. 1453, at paras. 64 and 65.\n\nSingh and Farahi-Mahdavieh were inadmissibility determinations under the certificate process in the former Act. Al-Yamani was a judicial review of an inadmissibility decision of the Security Intelligence Review Committee. In Farahi-Mahdavieh, Justice Denault applied the standard articulated in Jolly. In Al Yamani, Justice MacKay dismissed an argument that a standard higher than that of the normal balance of probabilities was required holding, as the Supreme Court has recently confirmed in McDougall, above, that there is only one civil standard.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-1", + "id": "fc-57473-50", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 1–3", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 100–101", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "This is an appeal from a decision of Justice Zinn of the Federal Court (the Applications Judge) dated November 7, 2018, which granted two applications for judicial review made by Honey Fashions Ltd. (Honey Fashions, or the respondent). The Federal Court set aside the decisions made by the Canada Border Services Agency (CBSA), which denied Honey Fashions’ claims for duty remission made under the Textile and Apparel Remission Order, 2014, SOR/2014-278 (TARO 2014).\n\nThe central issue is whether it was unreasonable for the CBSA to apparently reverse an administrative practice and deny name change requests to designate Honey Fashions as importer of record of goods that had been previously imported by others, so that Honey Fashions could obtain remissions under the TARO 2014 program. For the reasons that follow, I have concluded that, in light of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov), the Federal Court did not err in quashing these two decisions of the CBSA. The appeal should therefore be dismissed.\n\nAll goods imported to Canada are subject to the provisions of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), the Customs Tariff, S.C. 1997, c. 36, the Excise Act, 2001, S.C. 2002, c. 22, the Excise Tax Act, R.S.C. 1985, c. E-15, and the Special Import Measures Act, R.S.C. 1985, c. S-15, by which customs duties and taxes are assessed. However, the Governor in Council may, on recommendation of the responsible minister, remit all or a portion of the customs duties by way of a remission order.", - "current_to": "2020-03-19", + "text": "In Re Harkat, 2005 FC 393, [2005] F.C.J. No. 481, a decision which followed the enactment of the IRPA, Justice Dawson held at paragraph 42, that while the legal test was reasonable grounds to believe, the standard of proof was separate and was proof on a balance of probabilities. Justice MacKay observed in Jaballah (Re), 2006 FC 1230, [2006] F.C.J. No. 1706 at paragraph 65, that the threshold of “reasonable grounds to believe” does not require proof on a balance of probabilities; rather it connotes a degree of probability, i.e. a bona fide belief in a serious possibility, based on credible evidence. At paragraph 68, he stated: Thus, whether facts alleged and established on the basis of the threshold of \"a reasonable ground to believe\" fall within the statutory provisions of s-s. 34(1) may depend on the quality and cogency of the evidence. The question for the Court is to assess whether that evidence, and the weight accorded to it, will lead to the conclusion that the requisite standard of proof is met to support a finding that the facts fall within the conduct prescribed by the statute…\n\nI am of the view that “reasonable grounds to believe�� in s. 33 implies a threshold or test for establishing the facts necessary for an inadmissibility determination which the Ministers' evidence must meet at a minimum, as discussed by Robertson, J.A. in Moreno, above. When there has been extensive evidence from both parties and there are competing versions of the facts before the Court, the reasonableness standard requires a weighing of the evidence and findings of which facts are accepted. A certificate can not be held to be reasonable if the Court is satisfied that the preponderance of the evidence is to the contrary of that proffered by the Ministers.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-2", + "id": "fc-57473-51", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 4–6", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 102–104", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In 1988, the Department of Finance introduced a series of remission orders, intended to help Canadian textile and apparel manufacturers face the challenges of increased international competition. This program allowed listed companies (eligible companies) to import certain goods duty-free as long as they met the conditions specified in the orders. As a result, it was thought that Canadian manufacturers could rationalize their production by specializing in only a few lines while earning remission credits to import complimentary goods, thereby allowing Canadian apparel manufacturers to market a complete fashion line.\n\nIn 1997-98, these orders were superseded by updated versions to comply with the North American Free Trade Agreement (NAFTA). The new version of the program set a capped annual remission entitlement for each listed company, based on the total amount of remission that each manufacturer had received in 1995. The six remission orders listed below formed the basis of the TARO program:\n\nMany manufacturers preferred to focus on manufacturing textiles and apparel in Canada. They had limited, if any, interest in becoming importers. As a result, they began looking for ways to earn the benefits of the program as Canadian manufacturers without being obliged to start or expand an importing business. It appears that for many years, officials of the Department of Finance and of the CBSA allowed eligible Canadian manufacturers to contract with Canadian importers so that Canadian manufacturers could take advantage of their remission entitlements, all with the goal of ensuring that the benefits of the remission program would flow to the Canadian manufacturers.", - "current_to": "2020-03-19", + "text": "The Ministers submit that, in applying the reasonableness standard, some deference is owed to their determination that the named person poses a danger to national security. They cite the following statement at paragraph 85 of Suresh: Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision.\n\nThe Supreme Court in Suresh was conducting a standard of review analysis. They concluded that the factors of relative expertise and access to special information in matters of national security favoured deference to the Minister’s risk assessment, citing Lord Hoffman’s speech to that effect in Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877 (H.L.), at para. 62. Much has changed in the past eight years, including the Supreme Court’s decision in Charkaoui I and the House of Lords decision in the Belmarsh case in which they resiled from the Rehman dictum where the question to be determined is legal as opposed to political: A & others v. Secretary of State for the Home Department, [2004] UKHL 56.\n\nIn Charkaoui 1, at paragraph 38, the Supreme Court observed that Judges were correct to eschew an overly deferential approach in security certificate cases given the nature of the proceedings. And at paragraph 39 it was stated that \"[t] he IRPA does not ask the designated judge to be deferential, but, rather, asks him or her to engage in a searching review.\"", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-3", + "id": "fc-57473-52", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 7", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 105–106", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "As evidence of that practice, the respondent filed the affidavit of Stephen Yanow, the president of a blouse manufacturer which used the TARO program and whose main business between 1998 and 2012 was matching eligible Canadian manufacturers with Canadian importers who imported qualifying goods. He testified that officials of the Department of Finance approved of that practice, and attached as an exhibit to his affidavit a memorandum (for information) from an official of that Department to that effect. The Applications Judge quoted that memorandum in full at paragraph 10 of his reasons. The memorandum addressed the emerging practice of “remission brokers”, which it described in the following way: The “remission broker” is a recent phenomenon. These are customs brokers or consultants who identify manufacturers who have not used all of their import entitlement. For a fee, they locate importers who are interested in buying the entitlement. Depending on how you look at it, they essentially provide a service to manufacturers to locate importers willing to purchase excess entitlement. In this way, the manufacturers will receive some of the remission benefit (in the form of cash) that they otherwise would not have used. Appeal Book, vol. 2, p. 447", - "current_to": "2020-03-19", + "text": "Here, the Court is making a fresh determination based on all of the information and other evidence presented including additional material which was not before the Ministers. The Court, as a result of Charkaoui II, has had access to operational and human source management information not previously made available. In the closed sessions, the information relied upon by the Ministers was called into question and the Court heard evidence about the manner in which the SIR was prepared. Having reviewed all of the information and evidence, I consider that little deference is owed to the Ministers decision. Procedure\n\nWhen a certificate is signed by the Ministers stating that a permanent resident or a foreign national is inadmissible on grounds of security, they are required under section 77 of IRPA to refer the certificate to the Federal Court and file the “information and other evidence” on which the certificate is based and a summary of that information and other evidence that enables a person named in the certificate to be reasonably informed of the case but that does not include anything that, in the Minister's opinion, would be injurious to national security or endanger the safety of any person if disclosed. Under section 78, the judge shall determine whether the certificate is reasonable and shall quash it if he or she determines that it is not.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-4", + "id": "fc-57473-53", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 8–9", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 107–110", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The Department official advised that such a possibility was contemplated at the inception of the program, and that such a practice was in compliance with the conditions set out in the remission Orders and the Customs Act: Finance was apprised at the inception of the program about the possibility of selling of entitlement and, as it is currently taking place, the practice is in compliance with the conditions set out in the remission Orders and the Customs Act. (There is no requirement in the Orders that the importer of record be the owner of the goods imported. Manufacturers are simply acting as agents for third party owners and paying a remitted duty – the benefit of which is passed on to the owner.) In fact, it could be argued that it is the marketplace at work. Appeal Book, vol. 2, p. 448\n\nIn the summer of 2010, the CBSA discovered irregularities in its administration of the TARO program regarding the transfer of remission entitlements between several companies. It suspended the processing of all TARO program claims in the fall of 2010, and undertook a comprehensive Quality Assurance Review (QAR) of the program. As a result, Honey Fashions’ claims for duty remission on goods imported in 2006, 2007, 2008 and 2009 were held in abeyance.", - "current_to": "2020-03-19", + "text": "The Supreme Court has repeatedly recognized the justification for security intelligence information to be kept secret in order to protect national security: Chiarelli, above at paragraph 58; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, [2002] S.C.J. No. 73, at paragraph 43 and 44. That imperative may require a departure from the normal disclosure practices which allow a person, whom the state seeks to remove, to know the case that has to be met. The right to know the case to be met is not absolute: Charkaoui I, at paragraph 57.\n\nIn the context of a security certificate proceeding where removal may place the person at risk of torture or death, the right to a fair hearing requires that the necessary information is provided or a substantial substitute is found to compensate for non-disclosure: Charkaoui I, above at paragraphs 61 and 139. Parliament has responded with the enactment of the Special Advocate regime as a substantial substitute for complete disclosure.\n\nUnder paragraph 83(1)(a) of IRPA , the judge shall proceed as informally and expeditiously (“…sans formalisme et selon la procédure expéditive”) as the circumstances and considerations of fairness and natural justice permit.\n\nThe Court may, and on the application of the Ministers, shall hear information or other evidence in the absence of the public and of the named person and his counsel if, in the opinion of the judge, its disclosure could be injurious to national security or endanger the safety of any person: paragraph 83(1)(c) of IRPA.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-5", + "id": "fc-57473-54", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 10–12", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 111–113", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The QAR confirmed three errors committed by the CBSA, one of which being that the CBSA had been permitting certain eligible companies to transfer their remission entitlement, presumably for a fee, to other companies in cases it should not have. Once these irregularities were discovered, the CBSA developed and issued Memorandum D8-11-7 on November 28, 2012 (Policy on the Transfer of Entitlement Pursuant to the Textile and Apparel Remission Orders), which explains how entitlements to remission of customs duties pursuant to the remission orders may be transferred. It explains that the entitlements of an eligible manufacturer cannot be bought, sold or transferred, but can be re-allocated permanently to another company when that other company acquires, purchases or otherwise takes control of the operation of the eligible manufacturer.\n\nThe above-mentioned memorandum additionally recognizes the possibility of entering into “partnering agreements”. Paragraph 5 of the Memorandum states as follows: Subject to conditions, an eligible manufacturer or eligible fabric producer (one who is named in the Schedule to the Order), may enter into a partnering agreement with another company in order to realize its full remission allocation in a given year. In this way, the eligible company is the importer of record for the goods and the other company is the owner or consignee of the goods.\n\nSuch an agreement is subject to some conditions, one of which is that the agreement must be finalized and dated “prior to the release of the imported goods by the CBSA” (Memorandum D8-11-7, at para. 5(b)).", - "current_to": "2020-03-19", + "text": "The Court shall ensure that the named person is provided with a summary of the information and other evidence that enables them to be reasonably informed (“…suffisamment informé…”) of the Minister’s case but that does not include anything that the judge believes would be injurious to national security or put someone in danger: paragraph 83(1)(e) of IRPA. A decision can be rendered on the information and evidence even if a summary has not been provided to the named person: paragraph 83(1)(i). Role of the Special Advocates\n\nThe Special Advocates role in these proceedings is to protect the interests of the subject of the security certificate when information or other evidence is heard in the closed proceedings. Special Advocates may challenge the Ministers’ claim that the disclosure of information would be injurious to national security or endanger the safety of any person and they may challenge the relevance, reliability and sufficiency of the undisclosed information and the weight to be given to it: s. 85.1 of IRPA. They may make oral and written submissions with respect to the undisclosed evidence and participate in a cross examine any witness who testifies in the closed proceedings: s. 85.2 of IRPA. The Ministers are obliged to provide the Special Advocates with a copy of all of the undisclosed information and other evidence provided to the judge: ss. 85.4 (1) of IRPA.\n\nThe Special Advocates are prohibited from communicating with any person about the proceeding once they have had disclosure of the information or other evidence without the authorization of the judge: sections 85.4 (2) and 85.5 of IRPA. This limits the ability of the Special Advocates to obtain information and receive instructions from the named person and his counsel. THE ISSUES", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-6", + "id": "fc-57473-55", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 13", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 114–117", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Paragraph 6 of the Memorandum also seemingly allows a party that has imported goods and paid the duty on those goods to be subsequently replaced as the importer of record by an eligible manufacturer, by way of a name change request. Such a name change request must be made at the same time and on the same form as the claim for remission by the eligible manufacturer. This paragraph reads in part as follows: If goods that are subject to a partnering agreement and for which remission is or will be claimed have already been imported and accounted for in the name of the other company (i.e., the owner or purchaser), it will be necessary to amend the importer name before remission will be approved. In such cases, a name change request must be submitted in accordance with instructions set out in CBSA Memorandum D17-2-3, Importer Name/Account Number or Business Number Changes.", - "current_to": "2020-03-19", + "text": "The overarching issue is whether the certificate signed by the Ministers on February 22, 2008 in relation to Hassan Almrei is reasonable. Within the scope of that framework, the parties identified a number of factual and legal issues.\n\nThe respondent launched a broadly based challenge to the constitutional validity of the legislative scheme enacted through Bill C-3. He contends that the new regime does not cure the constitutional defects identified by the Supreme Court of Canada in Charkaoui 1 and, as a result, he was denied fundamental justice as guaranteed by section 7 of the Charter.\n\nIn particular, Mr. Almrei submits that the limitations on communications between the named persons and the Special Advocates after the latter have seen the closed information renders the new procedure ineffective as a reasonable alternative to full disclosure. He contends that the reasonable grounds to believe standard of proof is constitutionally inadequate and that the Charter requires nothing less than the normal civil standard. The search of his apartment in 2000 by CIC officers and the seizure of a false passport in his possession is said to have breached his right to protection against unreasonable search and seizure under s.8 of the Charter.\n\nDue to the nature of the information and other evidence in this case, and the steps that were taken to authorize communication where it was necessary, the respondent was not, in my view, denied fundamental justice and the Special Advocates were not hampered in performing their functions by the statutory restrictions on communication. The process worked as it was intended to by Parliament.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-7", + "id": "fc-57473-56", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 14–15", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 118–121", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Memorandum D17-2-3, referenced in Memorandum D8-11-7, outlines the procedures to be followed when an importer name change is necessary due to error on the part of the importer or the CBSA. Pursuant to section 7.1 of the Customs Act, all information provided to the CBSA must be “true, accurate and complete”. Paragraphs 14 to 22 of this Memorandum set out the procedure to be followed where the incorrect party has been named as the importer of record but where the true importer was entitled to conditions, exemptions and/or privilege (such as remission of duties under TARO). Paragraph 22 provides that the name change request must be: (a) supported by documents (e.g., purchase orders, commercial invoices, cancelled cheques, fax transmissions, written correspondence), which clearly indicate the claimant’s interest and the part played by the claimant in the import transaction; (b) supported by a letter from the importer of record, disclaiming involvement in the importation; and (c) supported by a clear and complete explanation of why the party named as the importer on the original accounting document was so named, and why the importer/broker/agent now believes that a second party is the true importer.\n\nThe CBSA recognized that the errors identified in the QAR were entirely its fault. Since Schedule 1 manufacturers who received remissions had relied in good faith on representations made and authorizations issued by CBSA officials, and had made business decisions accordingly, the CBSA concluded that it would be unfair to revoke the authorizations and seek to collect the duty that had been remitted.", - "current_to": "2020-03-19", + "text": "In light of the conclusions that I have reached on the factual issues, I do not consider it necessary to decide whether the new regime, as a whole, passes constitutional scrutiny. Similarly, as I have found that the certificate is not reasonable I do not need to determine whether the Charter requires the application of the balance of probabilities standard. I think it best to leave those questions to be addressed in another case where there may be a more suitable factual foundation and live controversy.\n\nWith respect to the validity of the 2000 search and seizure, a decision on that issue would not affect the outcome of this case. Nor is there sufficient evidence before the Court on the circumstances and the manner in which the search was conducted to arrive at a well-grounded opinion. I am also of the view that the respondent has implicitly waived his right to object to the search nine years after the event.\n\nThe issues that I intend to address in these reasons are as follows: 1. Are the allegations against Almrei supported by the information and other evidence presented to the Court? 2. Should the certificate be quashed as an abuse of process? THE ALLEGATIONS\n\nThe certificate signed by Ministers on February 22, 2008 states that Almrei is inadmissible to Canada by reason of paragraphs 34(1)(c), 34(1)(d) and 34(1)(f) of the IRPA – in essence that there are reasonable grounds to believe that Almrei will engage in or has engaged in terrorism, is a danger to the security of Canada and is a member of an organization that there are reasonable grounds to believe will engage in, or, is or was engaged in terrorism.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-8", + "id": "fc-57473-57", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 16–18", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 122", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "To correct the situation, TARO 2014 was enacted. It governed the administration of the TARO program from 2008 until 2012, the year the TARO program ended. TARO 2014 was designed to ensure that eligible Schedule 1 manufacturers received their full entitlement to remission up to 2012. Remissions to the companies listed in Schedule 1 to the Order were subject to the following conditions: a) the goods were imported into Canada between January 1, 2008 and December 31, 2012; b) the erroneous authorization for the remission must have been issued by the CBSA on or before December 31, 2012; and c) an application for the remission is received by the CBSA on or before the deadline set out in Schedule 2 of the Order. The conditions from the six original and separate TARO programs were also incorporated into TARO 2014.\n\nHoney Fashions is one of the companies listed on Schedule 1 of TARO 2014. Three of its drawback claims are relevant for the purpose of this appeal, each of which was accompanied by a name change request:\n\nThe last two claims were essentially resubmissions of past drawback claims that had been refused by the CBSA in February and August 2016 because they did not provide the proper documentation required in accordance with Memorandum D17-2-3. The resubmitted claims were accompanied by additional letters and arguments, but Honey Fashions did not provide the substantiating documents required by the Memorandum for their name change requests. On September 6, 2017 a senior official of the CBSA denied both of the resubmitted claims, on the basis that the documents provided “do not clearly establish that the name change is the result of an error of the importer or the [CBSA] or that the terms of Memorandum D17-2-3 have been met” (Appeal Book, vol. 1, pp. 175 and 292).", - "current_to": "2020-03-19", + "text": "The grounds for the certificate are set out in the SIR and A/SIR, the Statement Summarizing the Information (the “Public Summary”), and the Amended Summary with additional information filed with the Court on March 25, 2009. The Amended Summary states that based on the information obtained from unclassified sources, human sources, intercepts, physical surveillance and information from foreign and domestic agencies, the Service believes that: (a) Almrei supports the extremist Islamist ideology espoused by Osama Bin Laden, that he has connections to persons who share that ideology and that, through his involvement in an international document forgery ring, has the ability and capacity to facilitate the movement of those persons in Canada and abroad who would commit terrorist acts. (b) Osama Bin Laden is the leader of an international terrorist network of groups and individuals committed to the use of violence to attain their political objectives, and Bin Laden has established substantial ties through alliances and cooperation with other extremist groups. (c) The methodology of Al Qaeda’s leadership has shifted since September 11, 2001. Operations have been carried out by distinct terrorist groups affiliated with Al Qaeda through their training experiences in Afghanistan or direct connection to Al Qaeda’s mid-level leadership, or by autonomous units that adhere to Al Qaeda’s core principles but do not have any direct connections to Bin Laden. (d) Some scholars and academics believe that Al Qaeda is no longer a centrally-controlled organization, but recognize that its ideology lives on and that Bin Laden remains a powerful figurehead and inspiration for people around the world.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-9", + "id": "fc-57473-58", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 19–21", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 122", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Applying the reasonableness standard, the Federal Court found in favour of Honey Fashions. Reasoning that the decision to deny Honey Fashions the remissions under the TARO program stands or falls with the decision not to accept the name change requests, the Court focused on that decision and determined that it was made in breach of the CBSA’s duty of fairness in addition to being arbitrary and unreasonable.\n\nThe Federal Court found that Honey Fashions had a legitimate expectation, based on a clear, unambiguous and unqualified regular practice, that the CBSA would accept their name change requests and approve the drawback claims. In denying the claims without detailed reasons for what the Federal Court characterized as a “change in the procedure for changing the importer of record”, the CBSA treated Honey Fashions unfairly (Reasons, at paras. 43-48).\n\nThe Federal Court also found that the CBSA’s decision was unreasonable because it lacked justification, transparency and intelligibility. In the Federal Court’s view, there was no material difference between the claim filed in 2010 and the claims filed in 2015 (and refiled in 2016). Although acknowledging that CBSA officials are not subject to the doctrine of stare decisis, the Federal Court found the decision to grant the former but deny the latter without additional explanation to be arbitrary, and thus unreasonable.", - "current_to": "2020-03-19", + "text": "Others believe that Al Qaeda remains a viable entity and may be regrouping in order to spark a new wave of attacks. (e) The Bin Laden Network, through Al Qaeda, operated terrorist training camps in Afghanistan, Pakistan and Sudan, with cells in Somalia and Kenya. (f) Graduates of the camps have been dispatched to conflicts around the world to support various Islamist groups and causes, including Chechen rebels fighting Russia. (g) Other terrorist organizations have adopted the Al Qaeda brand name and they operate outside the Afghanistan-Pakistan Al Qaeda core area. (h) Thousands of people have been inspired by the Al Qaeda ideology. They act locally, but see their operations as part of a greater whole, as defined by Al Qaeda, which in turn utilizes these groups as part of its global strategy. (i) Eighteen individuals arrested in the summer of 2006 in the Greater Toronto Area and accused of terrorism offences, allegedly established training camps north of Toronto to practise military-inspired exercises. They had no formal affiliation to Al Qaeda but were believed to be inspired by Al Qaeda ideology. (j) Al Qaeda and its followers are adept at using the internet as a means of communicating with each other securely and quickly, and use the internet for recruitment, indoctrination, fund raising and propaganda. (k) In support of its clandestine actions, members of the Bin Laden Network use aliases and false documents, particularly passports, and manipulate official processes such as legal name changes, marriages of convenience and the arrival to a State without documents and registration under a false name in order to obtain official documents under new identities.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-10", + "id": "fc-57473-59", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 22–25", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 122", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In my view, the only issue to be decided by this Court is whether the Applications Judge erred in its application of the reasonableness standard of review to the CBSA’s decisions. The parties have also challenged the Applications Judge’s ruling on procedural fairness but for reasons developed below, I do not think that issue need be addressed here, if only because it appears to be a mere restatement of the conclusion on substantive reasonableness.\n\nThe Federal Court’s finding that the CBSA has jurisdiction to determine the identity of the importer of goods into Canada is not under appeal.\n\nThe original appellants in this appeal were the Attorney General of Canada and the President of the Canada Border Services Agency. They were the unsuccessful respondents in the application for judicial review in the Federal Court.\n\nAccording to Rule 303 of the Federal Courts Rules, S.O.R./98-106, however, the Attorney General of Canada should have been the only respondent in the Federal Court. As a result, the Attorney General of Canada is the only proper appellant in this Court. The style of cause should therefore be amended to reflect that change, and the President of the Canada Border Services Agency should be removed as an appellant.", - "current_to": "2020-03-19", + "text": "(l) Canadian citizens Abderraouf Jdey and Faker Boussora, who stated their intention to be involved in a martyrdom mission, are unknown and there is a strong likelihood that both are using false identities to remain undetected. (m) The misuse of passports and other documents is intrinsically connected with international terrorism. Terrorist groups and their operatives need to travel to plan and commit attacks. Surreptitious travel is facilitated by using false or improperly obtained documents. (n) Bin Laden has misappropriated donations made to Muslim charitable organizations in order to allow the Bin Laden Network to operate without the material support of a government or state sponsor. (o) The Bin Laden Network has displayed a high level of security consciousness and is careful with communications so as to avoid detection, including the use of noms de guerre. (p) Canada has been named as a legitimate target of attack on six occasions by Al Qaeda and groups or individuals linked to Al Qaeda. (q) In June 2007, at the graduation of approximately 300 apparently newly trained suicide bombers at a terrorist training camp, a Taliban commander announced that Canadian interests were all viable targets and that the recent graduates would be deployed to Canada. (r) Despite the dispersion of the Al Qaeda leadership and the group’s reduced ability to centrally organize and control operations, Al Qaeda issues audio or video tapes which are widely distributed in the Arab and Muslim world and which serve to motivate fellow Muslims to take up the jihadist cause. (s) Almrei has lied to Canadian officials, tribunals and Courts about his travel before coming to Canada.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-11", + "id": "fc-57473-60", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 26–27", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 122–123", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "After the hearing of this appeal, the Supreme Court of Canada released its decision in Vavilov. This Court thus requested further written submissions from the parties with respect to the applicable standard of review. There is no dispute between the parties that when this Court sits on appeal of a decision by the Federal Court reviewing an administrative decision, our task is to determine whether the application judge correctly identified the appropriate standard of review and applied it correctly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47 [Agraira]. In the case at bar, both parties agree that reasonableness remains the applicable standard of review.\n\nUnderstandably, the appellant and the respondent focus on different aspects of the Vavilov decision. The appellant acknowledges that where a decision maker departs from longstanding practices or established internal authority, the departure must be explained in its reasons. However, the appellant argues that the CBSA did not break with its longstanding practices because it has consistently considered importer name change requests in the context of its evaluation of remission claims under TARO. In the appellant’s view, Honey Fashions’ longstanding practice of submitting post-importation name change requests without substantiating evidence must not be conflated with the CBSA’s past decisions to accept its request without substantiating evidence.", - "current_to": "2020-03-19", + "text": "(t) The Bin Laden Network is founded on the commitment of its members to its leader and his ideals held together by bonds of kinship. Almrei shares these bonds and has demonstrated his support of Bin Laden, those associated with or sponsored by him and his ideology. (u) Almrei is associated with Arab Afghans connected to the Bin Laden network including Ibn Khattab, Nabil Almarabh, Ahmed al Kaysee and Hoshem al Taha. (v) Almrei is able to and has international connections to procure false documentation; he obtained a false Canadian passport for Nabil Almarabh, he knew individuals in Montreal who could obtain false documents, he travelled to Thailand and met a human smuggler and discussed false passports with him, he arranged a marriage of convenience in Canada, he made referrals for United States (“U.S.”) and Canadian driver’s licences, and a person he knew was detained in the U.S. in 2001 with thirteen packages of identity documents including passports. (w) Almrei has demonstrated concern for his security and an understanding of security procedures. THE “INFORMATION AND OTHER EVIDENCE”: Overview:\n\nAs discussed above, Division 9 of the IRPA provides that the judge presiding over the review of a certificate may receive into evidence and base a decision on anything that is reliable and appropriate, even if it is inadmissible in a court of law. This can include information from open and covert sources. In this case, the Ministers based their allegations against Mr. Almrei on information collected from a variety of sources as described in the Security Intelligence Reports and Public Summaries.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-12", + "id": "fc-57473-61", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 28–29", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 124–126", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The respondent retorts that the majority in Vavilov stressed the importance of justification for administrative decision makers, and that a more robust form of review is called for to ensure consistency and to guard against the threat of arbitrariness. Accordingly, in the respondent’s view, the Federal Court was right to focus on the CBSA’s reasons and on the need for the CBSA to explain its abrupt policy change. Relying more explicitly on paragraph 131 of Vavilov, the respondent stresses that one of the factors constraining the reasonableness of a decision is the need to provide explanations when a decision departs from longstanding practices or established internal decisions. Needless to say, Honey Fashions strongly disagrees with the appellant’s submissions that past practices and internal decisions are not the same.\n\nIn my view, the respondent rightly points to the importance given by the Supreme Court in Vavilov to the justification of a decision. To the extent that reasons have been provided, the reviewing court must pay close attention to those reasons to ensure that the decision is the result of an “internally coherent and rational chain of analysis” (Vavilov, at para. 85). In other words, the reasons may be as important as the result. As the majority stated at paragraph 86: In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.", - "current_to": "2020-03-19", + "text": "The Security Intelligence Reports or SIRs filed in this case, were prepared by CSIS as part of its duties under section 14 of the Canadian Security Intelligence Act, R.S., 1985, c. C-23. Section 14 authorizes the Service to advise Ministers on matters relating to the security of Canada and to provide them with information that is relevant to the performance of their duties under IRPA.\n\nThe SIR is not mentioned in the Act. It is a narrative report consisting of assertions of fact drawn from open sources and information provided by human sources, intercepted communications, physical surveillance and foreign and domestic security and intelligence agencies. Each assertion in the SIR is, according to CSIS policy, to be evaluated for its relevance and reliability and ‘facted” or linked to a documented covert or open reference held by the Service. The Public Summary, prepared by CSIS on behalf of the Ministers, contains that portion of the narrative which is deemed by the Service to be not injurious to national security or to source protection with footnoted references to open sources.\n\nThe SIR, the amended SIR (“A/SIR”), the public summaries of both, together with volumes containing the referenced open and covert sources and supplementary materials were all filed with the Court for its use and that of the Special Advocates. The SIRs filed with the Court contained colour highlighting indicating which information was classified and withheld from Mr. Almrei and the public and that which was made public in the summaries.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-13", + "id": "fc-57473-62", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 30–32", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 127–128", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In addition to the reasons provided, Vavilov directs the reviewing court to examine the reasonableness of an administrative decision in terms of the legal and factual constraints on the decision maker’s discretion. Among the constraints that bear on the reasonableness of a decision are the governing statutory scheme, the evidence before the decision maker, past practices and past decisions, and the impact of the decision on the affected individual. I will turn to each of these factors as they are the most relevant to the resolution of this dispute.\n\nBecause they exercise delegated authority, administrative decision makers must obviously act within the powers they receive by statute; accordingly, the governing statutory scheme is of crucial importance in determining the reasonableness of their decisions. In that respect, the range of discretion given to a decision maker will be of particular interest in assessing whether they have acted within the confines of the law.\n\nIn the case at bar, the appellant claims that the CBSA’s decisions comply with the rationale and purview of the statutory scheme under which the decisions were made, namely section 7.1 of the Customs Act and the TAROs. For situations like this, the D8-11-7 Memorandum directs parties to file name change requests “in accordance with instructions set out in CBSA Memorandum D17-2-3”. In each of the remission claims at issue, Honey Fashions provided accounting documentation that identified another company as importer of the qualifying goods. The drawback claims included letters noting the CBSA’s memorandum on importer name changes, and indicating that “incorrect party has been named as importer of record” (Tevel affidavit, Appeal Book, vol. 1, Tab 7, Ex. E, pp. 332, 341-342, 351, 354 and 362).", - "current_to": "2020-03-19", + "text": "The Ministers presented testimony from Service officers in both the open and closed hearings and expert opinion evidence from one witness in the public hearings. The respondent testified on his own behalf and called several expert witnesses to give opinion evidence in the public hearings. The public testimony and opinion evidence is discussed below. The evidence presented in the closed hearings is discussed in the closed reasons for judgment. The Open Source Information:\n\nThe SIR, A/SIR and the public summaries of both reports contain footnoted references to extensive unclassified or open source material filed with the Court by the Ministers in the form of indexed reference volumes. Much of this material is taken from newspapers, magazines, scholarly journals and on-line sources not available in print. Some 35 of the referenced reports were taken from sources available solely on-line and more than 50 were articles from newspapers and other print media sources. In addition, both parties filed numerous excerpts from open source materials which were put to the witnesses during their testimony. The reliability of some of this material became an issue in these proceedings. In the closed proceedings, counsel entered documents into evidence that had been produced as a result of the Charkaoui 2 orders.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-14", + "id": "fc-57473-63", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 33–35", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 129–130", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The D17-2-3 Memorandum is very clear on what documentation is required in support of a name change application (see paragraph 14, above). A pre-importation partnering agreement would have been acceptable substantiating evidence, as well as any documents clearly establishing that the claimant was the true importer. Honey Fashions did not provide the necessary documentation; instead, it tried to rely on a declaration that it was assuming the obligations of importer of record with the consent of the original importer (Appeal Book, vol. 1, pp. 300, 387).\n\nI agree with the appellant that for the CBSA to comply with the Customs Act, it had to ensure that the person who causes the goods to be exported to Canada was truly the importer before it could approve retroactively an importer name change request. This is consistent with section 7.1 of the Customs Act, which requires that all information provided to the CBSA shall be true, accurate and complete, and with the plain and ordinary meaning of “importer”. There is certainly an argument to be made that if the CBSA is precluded from excluding post-importation involvement and is forced to accept name change requests on the basis of a partnering agreement entered into after the goods are effectively imported to Canada, it would be constrained from performing its regulatory functions of verification and would be acting contrary to section 7.1 of the Customs Act.\n\nIf the reasonableness of the decisions under review were to be assessed on the sole basis of their conformity with the overall legislative scheme pursuant to which they were made, they might pass muster. The decisions of the CBSA are arguably consistent with the Customs Act and the applicable TAROs. To that extent, they may be considered reasonable in the abstract.", - "current_to": "2020-03-19", + "text": "As the case proceeded and the Court reviewed the open and closed information, it became apparent just how little was known by western security intelligence agencies and scholars about Al Qaeda and the jihadist movement in the months leading up to and following the events of 9/11. As Thomas Hegghamer, of the Harvard Kennedy School and the Norwegian Defence Research Establishment, has written: We were all frightened by the destruction caused on 9/11. Yet most of us… assumed that there would be people in the intelligence services or in academia who possessed detailed knowledge about the jihadists… How wrong we were… [I]t has become increasingly clear how little was known about al-Qaeda back in 2001, and how long it will take for us thoroughly to understand the dynamics of global jihadism. (Jihadi Studies: Times Literary Supplement, April 4, 2008 p.15)\n\nLittle attention had been directed to the jihadi phenomenon by security intelligence analysts and academic scholars. Hegghammer points out that the main contributions to the literature on Al Qaeda in the first few years after 9/11 came from investigative journalists, not academics or security specialists. This is apparent from the information filed in this case.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-15", + "id": "fc-57473-64", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 36", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 131–133", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The respondent claims, however, that the impugned decisions of the CBSA are at odds with past practices and past decisions. Relying on testimonial and documentary evidence, Honey Fashions argued that there was a consistent and longstanding departmental practice of accepting post-importation name changes on the basis of post-partnering agreements. The Applications Judge accepted that evidence in the following terms: [47] The uncontradicted evidence before the Court is that Honey Fashions has participated in the TARO Program since its inception, that it was not a major importer of apparel but took full advantage of its entitlements under the program by becoming the importer of record of goods previously imported by others. It did so by filing a name change with the CBSA to record it as the importer of record, with the agreement of the initial importer. This procedure was accepted and arguably endorsed by the CBSA. Until the decisions under review were made “CBSA officials consistently accepted the name change notification to change the importer of record, and processed Honey Fashions’ remission applications on the basis that Honey Fashion was the importer of record.” The change in the procedure for changing the importer of record had dramatic consequences to Honey Fashions.", - "current_to": "2020-03-19", + "text": "In the reaction to 9/11 and the “Global War on Terror” initiated by the US and its allies, there was a rapid proliferation of instant experts and new organizations claiming knowledge in the field, as several of the witnesses testified. In Hegghammer’s words, there was “a deluge of writing in which truth was mixed with factoids and conspiracy theories”. This was borne out by much of the material filed in these proceedings and from the witnesses’ testimony. The Court’s task was, in part, to sort the fact from the rumour and truth from the speculation in the filed material to determine what was reliable and appropriate information and other evidence upon which a decision could be rendered. Third Party Information:\n\nDivision 9 of IRPA permits the reception of information obtained in confidence from foreign security intelligence and police agencies. CSIS sought information about Mr. Almrei from a number of foreign agencies prior to and following his detention. I have more to say about this in my closed judgment. For the public record, I think it necessary to state that the responses from foreign agencies were largely negative respecting Mr. Almrei. He was not known to be an extremist suspect by the authorities in the jurisdictions canvassed.\n\nRelevant information was provided by foreign agencies regarding the arrest, detention and ultimate deportation of Nabil Almarabh from the United States and with respect to the respondent’s Thai based contact, a Palestinian named Ghaleb, and his connections.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-16", + "id": "fc-57473-65", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 37", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 134–135", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In its initial submissions, the appellant stressed that the doctrine of stare decisis does not apply to administrative decision makers, and that they are not required to explain the differences between two separate decisions. Following the release of Vavilov, counsel recognized that departures from longstanding practices or established internal authority must now be explained, but argued that there was no such departure in the case at bar. In a somewhat specious argument, counsel contends that the CBSA’s practice has not changed in the context of a claim for remission of customs duties because its decision to accept the name change in the past is not a practice but a substantive outcome. To quote from their written submissions (at paragraph 6 of their January 31, 2020 letter), “[e]ssentially, Honey Fashions conflates their alleged long-standing practice of submitting post-importation name change requests without substantiating evidence, with the CBSA’s past decisions to accept their request without substantiating evidence”. In my view, this is a distinction without a difference and, as such, an argument without merit.", - "current_to": "2020-03-19", + "text": "Information was also provided to CSIS by the US Federal Bureau of Investigation (F.B.I.) with respect to Mr. Almarabh’s responses to questions that CSIS had requested be posed to him regarding his relationship with Mr. Almrei while Mr. Almarabh was in US custody. A summary of that information had been previously disclosed to the respondent and his counsel. The full report was provided to the Court and to the Special Advocates as a result of the October 10, 2008 production order. The content of that report was relevant to the merits of the certificate and to the motion by the Special Advocates to quash the certificate on the ground of a breach of the duty of candour.\n\nAs this Court has previously observed, where the government wishes to protect material information provided by a third party under caveat, the consent of the third party to disclose the information should normally be sought: Khadr v. Canada (Attorney General), 2008 FC 549, [2008] F.C.J. No. 770, at paragraphs 93-95. In this case, the Special Advocates had access to the closed third-party information in the court file subject to the redaction of irrelevant content. The respondent is also aware of the gist of the information and the allegations relating to Almarabh and Ghaleb. He replied to these allegations in his cross-examination of the government witnesses and in his testimony.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-17", + "id": "fc-57473-66", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 38", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 136–138", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "First of all, I note that the Supreme Court uses “past practices” and “past decisions” interchangeably in Vavilov, and is more concerned with the need for coherence and justification than with semantics. What matters is that like cases be treated alike and that outcomes shall not be dependant on the identity of the individual decision maker (at para. 129). In that spirit, it matters not whether a course of action is labelled as “past practices” or “past decisions”. Of course, I agree with the appellant that the CBSA must always be able to exercise its discretion to determine how and when verification for compliance is conducted, and to consider importer name change requests in the context of its evaluation of remission of customs duty claims under TARO. However, if the evidence establishes that the CBSA has consistently allowed importer name change requests for remission of customs duties without requiring substantiating evidence showing pre-importation partnering agreements, these past decisions amount to past practices (both for Honey Fashions and the CBSA).", - "current_to": "2020-03-19", + "text": "In my view, disclosure of the third party reports would have been injurious to Canada’s national security as the information was provided in confidence under protective caveats. Given that the essential facts were already part of the public record, I did not consider it necessary in this case to direct that the Service seek consent to disclosure from the foreign agencies that provided the information. I was also mindful of the obligation under the statute to conduct the proceedings in an expeditious manner. This decision was communicated to Mr. Almrei and his counsel on June 10, 2009.\n\nInformation was also provided to the Service by the RCMP, the Department of Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA). RCMP reports of information received from human sources shared with CSIS were disclosed to the Court and to the Special Advocates. As the reliability of the sources could not be determined and the information was vague and unsubstantiated, those reports carried very little weight and were not relied upon by CSIS in the preparation of the SIR and A/SIR.\n\nDuring the course of the proceedings certain reports prepared by the RCMP and CIC were provided to the Court and the Special Advocates, and with the redaction of non-material and sensitive information, disclosed to the respondent and his counsel. The factual accuracy of these reports became an issue in the open proceedings.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-18", + "id": "fc-57473-67", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 39", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 139–142", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "As previously mentioned at paragraph 18 of these reasons, both the 2011 and 2012 claims were rejected without any explanation or justification as to why those claims ought to be treated differently from earlier ones. This is particularly egregious considering that the 2009 claim had been accepted on the basis of the same information given by Honey Fashions (although admittedly on the basis of the pre-QAR policies and before CBSA issued the D8-11-7 Memorandum). Once again, this is not to say that the CBSA was bound to follow the same course of action it had followed in the past. CBSA was indeed entitled to modify its policy in order to comply with the Customs Act, provided that in so doing, its interpretation is reasonable. However, in the circumstances of this case, the CBSA should have provided an explanation to Honey Fashions with respect to its departure from past practice. As the Supreme Court stated in Vavilov (at para. 131): We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.", - "current_to": "2020-03-19", + "text": "CIC/CBSA information used in the SIR and A/SIR included reports on the information provided by Almrei in support of his unsuccessful visa application in 1998 and upon his entry in 1999. It includes a report on the search conducted at Almrei’s apartment on September 13, 2000 when CIC officers attempted to arrest his roommate on a departure order. This report contained erroneous information about Almrei’s refugee claim. Another report concerned a CIC file for an individual linked to Almrei; a Syrian male with Afghan experience who had traveled to the United States on altered and false passports.\n\nAn RCMP investigation report in relation to certain events at Pearson Airport was produced late and only after repeated requests. The significance of the report will be discussed below. Telecommunications Intercepts:\n\nThe Ministers initially relied on a handful of intercept reports in the SIR. Following a review of these reports in the closed hearings, two were withdrawn by the Ministers upon the Court’s finding that they were not relevant to the proceedings, as they concerned other persons and the use of a communication technique not connected to Mr. Almrei.\n\nSummaries of conversations used in the A/SIR were approved by the Court and disclosed to Mr. Almrei on April 17, 2009 (Exhibit A-13). In one of several conversations on September 14, 2001 an unknown male spoke with Almrei addressing him as Abu al Hareth and inquired about the contact numbers of a third person. This was, apparently, the Service’s first confirmation that Almrei was known to his friends and associates by the name, Abu Al Hareth. But he was well known by that name within the Muslim community in Toronto and, indeed, the RCMP had been making inquiries about him under that name.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-19", + "id": "fc-57473-68", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 40–41", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 143–145", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "I am therefore of the view that the decisions of the CBSA were not reasonable in light of this important contextual consideration in the present case. It was not sufficient to claim, ex post facto, that the decisions made by the CBSA official complied with the rationale and purview of the statutory scheme under which they were made. In light of the impact of the decisions on the respondent, CBSA had to provide it with an explanation as to why the past practice was not followed and, presumably, why a post-importation partnering agreement would be contrary to section 7.1 of the Customs Act and would undermine the customs scheme when such agreements had been accepted without question in the past. Accordingly, on the basis of the recent teachings of the Supreme Court in Vavilov, it was open to the Federal Court to hone in on the fact that the CBSA official made no reference to his earlier decision or to the longstanding departmental practice of accepting name change requests without certain supporting documentation. I therefore agree with the Federal Court’s conclusion that the CBSA’s decisions lack justification, transparency and intelligibility.\n\nFinally, the appellant challenges the Federal Court’s factual finding that the CBSA had a policy dating back from the inception of the TARO program of approving post-importation name changes. They argue that, in the absence of direct evidence, the Federal Court could only consider serious, precise and concordant presumptions, the like of which do not arise from this record. The respondent, on the other hand, asserts that there was direct evidence as well as supportive indirect evidence allowing the Applications Judge to find that the CBSA “arguably endorsed” such a practice.", - "current_to": "2020-03-19", + "text": "In the course of several conversations on October 9, 2001, Almrei was told by an acquaintance he had been followed that day by two men in a car who were, at the time of the conversations, parked in front of the acquaintance’s building. Almrei was advised not to visit the acquaintance the next day as they were both under scrutiny. The acquaintance also spoke about providing funds to assist Almrei with his lawyer’s fees. These intercepts, with other closed information, were offered in support of the assertion that Almrei was security conscious and took steps to avoid surveillance.\n\nOn April 24, 2009, summaries of intercepted communications that had been disclosed to the Court and to the Special Advocates as part of the Charkaoui II production, were disclosed to Mr. Almrei and the public in a volume filed as Exhibit A-14. The summaries concerned some 55 conversations which took place on and between September 12, 2001 and October 18, 2001 which were not relied upon in the SIR and A/SIR as they contain no information in support of the Ministers' case.\n\nSeveral of these intercepts became relevant in the closed proceedings as the reports of the communications intercepted by the Service proved to be inconsistent with reports of information provided by human sources respecting conversations on the same dates. In that respect, they were also relevant to the motion to quash the certificate brought by the Special Advocates. Physical Surveillance Reports:", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-20", + "id": "fc-57473-69", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 42–43", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 146–147", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "I accept the appellant’s submission that the testimonies of Bernie Tevel and Stephen Yanow are not sufficient to establish that the CBSA was aware of and endorsed Honey Fashions’ practice to claim duty remission on goods previously imported by others. These individuals could certainly testify that the CBSA routinely accepted name change notifications changing the name of the importer of record on the customs entry forms from the original importer to the Canadian manufacturer, without any indication as to whether the agreement was made prior to or after the importation. But they cannot purport to know what the CBSA was aware of at the time these decisions were made, and in particular whether the CBSA was aware that the importer name changes were based on post-importation agreements. This is precisely why the Federal Court was careful to state that this procedure was accepted “and arguably endorsed” by the CBSA (Reasons, at para. 47).\n\nThis is not the only basis, however, upon which the Federal Court came to the conclusion that there is direct evidence that the CBSA consistently accepted post-importation name change notifications to allow Schedule 1 manufacturers to claim remissions for goods previously imported by others. It noted that this administrative process was not flagged during the QAR as an unacceptable or illegitimate practice, and was not objected to in the course of the audits to which Honey Fashions was subjected at least three times (Reasons, at para. 48). These factual findings are entitled to a high degree of deference.", - "current_to": "2020-03-19", + "text": "Almrei was under physical surveillance prior to his arrest and detention. Physical surveillance reports referenced in the A/SIR were disclosed in Exhibit A-13 on April 17, 2009. These concerned surveillance on September 17, 1999 and September 19, 1999. The first report concerned events at Pearson airport which will be discussed below. The second describes Almrei’s driving behaviour as he was followed around Niagara Falls while he visited several nightclubs and restaurants. This second report was relied upon in support of an assertion that Almrei had exhibited security tradecraft in an effort to determine whether he was being followed. Another interpretation, conveyed by one of the surveillance teams, is that he was wandering around just to kill time.\n\nThe Charkaoui II Order produced a considerable number of other physical surveillance reports. The Ministers objected to their disclosure to the respondent on the grounds that they contained no relevant information, would disclose covert operational methods and surveillance techniques and were not relied upon in the A/SIR. The Special Advocates considered that they were relevant if only to demonstrate that Almrei’s behaviour on those dates had been innocuous. In the result, an overview summary of the surveillance conducted between August 1999 and October 2001 was approved for disclosure to Mr. Almrei and the public and forms part of Exhibit A-14.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-21", + "id": "fc-57473-70", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 44–46", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 148–150", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The appellant further submits that the Federal Court improperly relied on indirect evidence (primarily an internal memorandum from a Minister of Finance official dated April 26, 1993, and Memorandum D8-11-7) to conclude that the CBSA accepted post-importation name change notifications. I agree with the appellant that these two documents are inconclusive and would be insufficient, in and of themselves, to establish that the CBSA has endorsed and condoned post-importation name change agreements. However, this is beyond the point.\n\nFirst of all, it is not at all clear that the Federal Court relied on that evidence to reach its conclusion. There was enough direct evidence to the same effect in the record. More importantly, Memorandum D8-11-7 could not have been offered as proof of the CBSA practice, since it was only released in late 2014. It could only be presented as being consistent with the alleged CBSA practice and in support of the direct evidence. Ultimately, I find the indirect evidence of little help for the resolution of the questions before us.\n\nIn light of all the foregoing, I am of the view that the Federal Court did not err in finding that the decision by the CBSA not to accept the name change requests was unreasonable. If anything, that conclusion is bolstered by the recent decision of the Supreme Court in Vavilov, with its insistence on the need for a reasonable decision to be justified in light of the legal and factual constraints that bear on that decision. A decision maker cannot deviate from earlier decisions or from a longstanding past practice, especially when it is too late for those affected by these decisions to adjust their behaviour accordingly, without providing a reasonable explanation for that departure.", - "current_to": "2020-03-19", + "text": "Several of the physical surveillance reports proved to be highly relevant in the closed proceedings in support of the motion to quash as their content was inconsistent with information provided by a human source regarding Almrei’s movements and contacts on specific dates. This will be discussed further below. Information Obtained or Derived from Torture or Cruel, Inhumane or Degrading Treatment\n\nAs outlined above, IRPA subsection 83(1.1) provides that reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code or of cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.\n\nQuestions arose in these proceedings as to whether any of the information in the SIR and A/SIR had been obtained as a result of the use of torture or cruel, inhuman or degrading treatment or punishment. From my review of the SIR and A/SIR, the records disclosed in response to the October 10, 2008 order and the evidence presented in the public and closed hearings, I was initially satisfied that the Ministers did not rely upon information that had been obtained through the use of such methods. The Special Advocates were authorized to communicate that view to Mr. Almrei and his counsel so as to avoid the calling of unnecessary expert opinion evidence during the public hearings about the treatment of certain high-level detainees by the US and allied forces. There were no such reports from such detainees claiming, for example, to have seen Mr. Almrei in a place or places consistent with the government allegations.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-22", + "id": "fc-57473-71", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 47–49", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 151–153", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "As for the Federal Court’s finding that the CBSA’s refusal to accept Honey Fashions’ importer name change requests were made contrary to its legitimate expectations, I need not say much. I agree with the appellant that the respondent did not raise the duty of fairness before the Federal Court either in its Notices of Application, in its Memoranda of Fact and Law, or at the hearing. Allegations were made that the decisions being challenged were unfair and arbitrary, but these arguments were meant to substantiate the purported unreasonableness of the decisions, not a breach of procedural fairness.\n\nAs a matter of fairness, courts should constrain themselves to the grounds raised in the pleadings. As the Supreme Court stated in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 at para. 9, “each party is entitled to know and respond to the case that it must answer”. I accept that the respondent did argue unfairness in relation to its legitimate expectations, but this was not sufficient in my view to squarely raise procedural fairness per se. It is clear from a transcript of the hearing that the parties never joined issue on that question (see, in particular, Appeal Book, vol. 2, at pp. 629, 657 and 671), and it was therefore an error of law for the Federal Court to conclude that the appellant violated Honey Fashions’ legitimate expectations.\n\nBe that as it may, the Federal Court’s procedural fairness analysis was really a substantive review in disguise. Its conclusion with respect to procedural fairness appears to be nothing more than a restatement of its conclusion on substantive reasonableness, as is readily apparent from these two findings:", - "current_to": "2020-03-19", + "text": "During the public hearings, however, it became apparent that some of the open source reference documents contained information that was obtained by members of the US military or intelligence agencies from detainees captured in the aftermath of 9/11. Based on information in the public domain, the use of so-called “enhanced interrogation methods” such as waterboarding had been approved by the former US administration for use by US interrogators between 2002 and 2004.\n\nNone of the documents in question contained information implicating Mr. Almrei but had been included as contextual reference material regarding Al Qaeda’s operations and methods. The documents in question included several chapters of the 9/11 Commission Report. An explanatory note in the Report states that chapters 5 and 7 contain information obtained from the interrogations of certain named detainees. Without deciding the matter, I concluded that it is open to the Court to find that the information contained in those chapters of the Report, and similar US documents, was obtained through the use of torture or cruel, inhuman or degrading treatment as defined in the Code and the Convention and would not be admissible evidence or information in security certificate proceedings under IRPA, at subsection 83(1.1).\n\nWhen this issue was raised during the public hearings counsel for the Ministers properly took the position that they would no longer be relying upon the documents in question. The Court has not, therefore, taken them into consideration in arriving at a determination in these proceedings. The Human Source Information:", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-23", + "id": "fc-57473-72", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 50–51", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 154–156", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Finally, I also agree with the appellant that the doctrine of legitimate expectations cannot give rise to substantive rights: Agraira at para. 97; Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 at p. 557; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 75. Past practices, therefore, could not ground a legitimate expectation that a request for a name change to the importer of record would be granted in the future even if such a practice is established. The Court may only grant appropriate procedural remedies in the event that the conditions for the application of this doctrine are met: see C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 131.\n\nMoreover, legitimate expectations is only one of the factors to be considered in determining what procedural fairness requires in a given context: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 22-28. In the case at bar, there is no suggestion that Honey Fashions was not given a fair procedure, including notice and an opportunity to provide additional substantiation for its claims. I find, therefore, that the Federal Court erred in concluding that the decision by the CBSA not to grant the name change requests was made in breach of its duty of fairness.", - "current_to": "2020-03-19", + "text": "The strength of the Ministers’ case rests to a considerable extent on information provided to CSIS by human sources. As presented to the Court, this information was drawn from source reports maintained in the Service’s operational records database. Statements in the A/SIR attributed to the sources are supported by footnoted references to the reports which were reproduced in the classified reference materials filed with the Court. Typically the report would indicate that the writer, a CSIS employee, had met with the source on a certain date and had been given certain information. Notes of the interview, if any were made, were typically not retained. The source is identified only by a code number and word.\n\nA classified Source Exhibit containing information about the human sources was filed with the Court on September 5, 2008.\n\nFurther to the delivery to the Court of the information produced in response to the Charkaoui 2 disclosure order and the review of that information by the Court and the Special Advocates, on April 3, 2009 the Court issued a confidential order requiring the production of additional classified information respecting the human sources. The Ministers responded to that order by filing two volumes of documents on May 1, 2009. The Court required the production of further information respecting the Service’s assessments of the credibility and reliability of the human sources. A supplementary response was filed on May 15, 2009.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-466027-24", + "id": "fc-57473-73", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 52", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 157–158", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "For all of the above reasons, I would dismiss the appeal, maintain the judgment of the Federal Court, and return the remission claims of Honey Fashions to the CBSA for redetermination in accordance with these reasons, the whole with costs in this Court and in the Court below. I would amend the style of cause and remove the President of the Canada Border Services Agency as an appellant. The style of cause on these Reasons and on the Judgment should reflect this amendment. “Yves de Montigny” J.A. “I agree Richard Boivin J.A.” “I agree Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2020-03-19", + "text": "On May 25th, 2009 counsel for the Ministers submitted a Revised and Amended Source Exhibit for filing. This document contained revisions to the information filed on September 5, 2008. In respect of one human source, a polygraph examination had not been performed as was previously reported. With regard to a second human source, the circumstances surrounding a 2007 polygraph examination, not directly related to this matter, were in question. As a result of this and similar questions which had arisen in another certificate case, a review of the preparation of the source exhibits was undertaken by CSIS and the Department of Justice.\n\nOn June 3, 2009 the Court issued a confidential direction requiring the production of additional information relating to a number of questions concerning the human sources. Top secret documents were filed by the Ministers in response to that direction on June 17-18, 2009, including a document entitled a \"Source Précis\". The Source Précis contained further extensive revisions to the information provided by CSIS regarding the human sources. It was then clear that the second human source was found to have been deceptive in providing answers during the 2007 polygraph examination. On June 22, 2009 a senior manager of the Service was examined and cross examined concerning the process which CSIS had followed in preparing the original and the revised source exhibits and the internal review of these processes. These developments were communicated to Mr. Almrei and his counsel on June 10 and June 26, 2009.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-1", + "id": "fc-57473-74", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 1–3", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 159–161", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Mr. Hociung appeals from the judgment of the Federal Court (per Gleeson J.) granting the respondent’s motion for summary judgment and dismissing his action (2018 FC 298).\n\nIn a companion appeal in file A-101-18, Mr. Hociung appeals the order of the Federal Court (per Gleeson J.) dismissing his motion for leave to amend the statement of claim. Although two notices of appeal were filed, these two decisions are linked and the findings in respect of the motion for summary judgment may have an impact on the merits of the proposed amendments.\n\nThe Canada Border Services Agency (the CBSA) seized four $50 USD Buffalo Bullion coins and twenty $1 USD Silver Eagle coins when Mr. Hociung failed to declare these precious metal coins as “goods” upon his entry into Canada from the United States allegedly in contravention of section 12 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (the Customs Act).", - "current_to": "2019-08-07", + "text": "The Court will deal with the merits of the information provided by the human sources in the closed judgment. However, in light of the disclosure of errors in the Source Exhibit and the resulting motion brought by the respondent to quash the certificate as an abuse of process, it is necessary to address the question of the reliability of this information in these public reasons.\n\nThe Court is sensitive to the fact that human sources are an important component of the resources available to security intelligence agencies in collecting information to protect national security. CSIS is justifiably proud of its ability to recruit and develop directed human sources. For a comparatively small intelligence agency they have an established track record of success in recruiting productive sources. This may give CSIS a relative advantage in the collection and sharing of information between partner countries which have more extensive technological capabilities or more numerous personnel. That success no doubt serves Canada’s security interests well.\n\nThe precautions adopted by CSIS to protect human sources include the close guarding of any information that might possibly identify and expose the sources within the Service itself. Such information is only available on a strict need to know basis to a limited number of CSIS employees and is kept separate from the general reporting system and databanks.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-2", + "id": "fc-57473-75", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 4", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 162–164", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Mr. Hociung purchased the coins in the United States at a cost of $5,700 USD, although their denomination or face value is $220 USD. Mr. Hociung had been traveling to the United States for the day only (same day traveler); he was not questioned about the amount of “cash” or “currency” in his possession by the CBSA officer and the seizure did not relate to a failure to declare the coins under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, S.C. c. 17 (the Proceeds of Crime Act) or the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 (the Reporting Regulations). The coins were discovered after Mr. Hociung was asked to present himself to the CBSA’s office for inspection after he declared having bought two new tires for his car in the United States (declared value $500). There is no indication in the record that he was asked to pay any duties or taxes on the tires.", - "current_to": "2019-08-07", + "text": "In this case, the reliability of the information provided by several human sources became a key issue. If the information from the sources is to be believed, Mr. Almrei is dedicated to the Bin Laden ideology and a threat to the security of Canada. It was crucial, therefore, for the Court to determine whether the sources were credible. That assessment depended in part on information held by CSIS in the source management files; how they were recruited, developed and managed as directed sources and the internal assessments of their reliability.\n\nProduction of the Charkaoui 2 information also allowed for a comparison of the reports of information provided by the human sources with other information held by CSIS including the intercept and surveillance reports. That comparison identified some serious contradictions. In the result, I was satisfied that the highly relevant information provided by one source in particular was not credible as it conflicted with surveillance and intercept reports made by CSIS personnel regarding the same dates and times.\n\nIt is of particular concern that these contradictions did not come to light until they were put to the Service witness in cross-examination by the Special Advocates. That witness was unable to provide satisfactory explanations for the failure of the Service to analyse the conflicting reports and to disclose this information to the Ministers and to the Court. This suggests a serious lack of analytical capacity in managing the enormous volume of information collected by the Service. The Service Witnesses:", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-3", + "id": "fc-57473-76", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 5–6", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 165–166", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Mr. Hociung contested the seizure and requested a decision from the Minister of Public Safety and Emergency Preparedness (the Minister) on the issue of whether the Customs Act had been contravened. Pursuant to section 131 of the Customs Act, the Minister’s delegate found that there had indeed been a contravention of section 12 of the Customs Act, but as he was entitled to do pursuant to section 133 of the Customs Act, he reduced the penalty for the release of the seized coins from $1,606.97 to $321.39 (section 133 of the Customs Act). He dismissed Mr. Hociung’s argument that the coins were “currency” as opposed to “goods” and therefore he did not need to declare them under the Customs Act. It is in this context that Mr. Hociung contested the CBSA’s interpretation of the word “currency” in the Proceeds of Crime Act that contributed in his view to a misapplication of the Customs Act and the Proceeds of Crime Act, as well as the relevant regulations adopted under the latter statute.\n\nThe denomination value of the coins ($220 USD) if used as legal tender in the United States was less than $10,000 CAD. Even if held to be currency within the meaning of the Proceeds of Crime Act, Mr. Hociung was not required to declare the coins under that statute as their value was below the limit set out in the Reporting Regulations. There is no dispute about this.", - "current_to": "2019-08-07", + "text": "The Ministers called CSIS employees as representative witnesses in both the open and closed proceedings. These were “representative” witnesses in the sense that they gave evidence based on information collected by the Service relevant to the proceedings and not from personal knowledge of the case. They also testified about the Service view of the danger to Canadian national security and the global risks posed by Sunni Islamic extremism. Neither of the three witnesses called (including the witness on the detention review) were tendered as experts to give opinion evidence. They testified as fact witnesses regarding their knowledge of the threat environment and the information compiled by CSIS relating to Mr. Almrei. I found them to be experienced, knowledgeable and professional.\n\nIn the closed proceedings, the evidence of the Service witness dealt with the classified information referenced in the SIR and A/SIR and supporting documents. His identity was disclosed for the purposes of the record but I see no need to reveal it here. I discuss his evidence in greater detail in the closed reasons for judgment. For the public record, the witness testified with regard to the accuracy of the classified information derived from human and other sources. In particular, the witness testified as to the background of the human sources, their relationship with and motivation for cooperating with the Service, why their information was considered reliable and how it formed part of the Service’s assessment of Mr. Almrei. The witness was cross-examined on that evidence and on records obtained from the Service operational and human source management databases.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-4", + "id": "fc-57473-77", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 7–8", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 167–168", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The Minister’s delegate issued his decision on May 28, 2015. On August 28, 2015, Mr. Hociung filed his action before the Federal Court. Although his action includes an appeal pursuant to section 135 of the Customs Act, it does include other claims and seeks additional relief, including damages based on alleged torts committed during the interaction between CBSA employees and Mr. Hociung, such as threats of violence and fraudulent misrepresentations.\n\nIn his statement of claim, Mr. Hociung, a self-represented litigant, describes the seizure and the alleged misinterpretation of the Customs Act, the Proceeds of Crime Act and the Currency Act, R.S.C., 1985, c. C-52 (the Currency Act) by the CBSA as fraudulent and designed to (i) aid crime and terrorism in Canada, and (ii) make illegal profits from the taxation of “currency” as “goods”. He alleges that various employees involved in the seizure and his contestation of it are guilty of criminal conduct. Among the other relief sought are damages and various declarations, such as a declaration that Canadian and foreign precious metal coins fall within certain provisions of the Proceeds of Crime Act as opposed to the Customs Act. Mr. Hociung also seeks an order directing the Prime Minister to create an oversight body to ensure the lawful implementation of the Proceeds of Crime Act, as well as an order directing the refund of all taxes, duties, and any fines obtained by the CBSA in relation to shipments of gold and silver coins, foreign and domestic, since the Proceeds of Crime Act was enacted.", - "current_to": "2019-08-07", + "text": "In the open proceedings, the Ministers called Mr. Robert Young, a manager with the Service’s Toronto Region office. Mr. Young has a BA in political science and an M.A. in international relations. He has been an intelligence officer with the Service since 1986, serving as an investigator and analyst and, since 1999, as a manager. For the two years prior to his testimony he had been responsible for managing investigations into Sunni Islamic extremism in the Toronto region. In the course of his employment, he has traveled to Afghanistan, Pakistan, India, Sri Lanka and he had lived in the Middle East for three years in the late 90s dealing with Sunni extremism issues.\n\nMr. Young had visited Afghanistan for operational reasons for about a week. Ministers’ counsel objected to cross examination on the purpose of that visit on national security grounds. The matter was not pressed by the respondent and I did not consider this information to be relevant to these proceedings. Mr. Young did not purport to be an expert on Afghanistan. He is familiar with the background to the conflict there but not the details. He doesn’t speak any of the local languages.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-5", + "id": "fc-57473-78", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 9", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 169–170", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In his motion to amend his statement of claim (the subject of the appeal in file A-101-18), Mr. Hociung seeks to add two defendants, including Her Majesty the Queen (vicarious liability), as well as claims against other employees of the CBSA involved in the process leading to the Minister’s final decision (see e.g., paragraphs 3(a)(4), 3(a)(4)(g), 5 and 6 of the proposed amended statement of claim). He also wishes to include various factual details, particularly with respect to the so-called “money laundering scheme run by the CBSA” (such as paragraphs 9, 10 and 11 of the proposed amended statement of claim), references to internal bulletins, and previous instances involving the alleged “misapplication” of the Proceeds of Crime Act and other statutes by the CBSA, of which he became aware after filing his action. Mr. Hociung also sought to amend his statement of claim to refer to section 469 of the Criminal Code, R.S.C. 1985, c. C-46, which grants the power to every court of criminal jurisdiction to deal with certain types of offences, and to include additional relief such as an order directing the Minister of Public Safety to dismantle the present CBSA and to implement a new Agency that conforms to the requirements of the Canada Border Services Agency Act.", - "current_to": "2019-08-07", + "text": "While there was some overlap with the testimony of the Service witness in the closed hearings, Mr. Young did not refer to the classified information and he had not read it in preparation for his testimony. His evidence reviewed the Service’s mandate with regard to threats to the security of Canada under the CSIS Act. He then addressed the case against Mr. Almrei as it appears in the public summaries of the security intelligence reports. Much of his evidence was of a background nature, outlining the Service understanding of Al Qaeda and the Bin Laden Network, the role of the Afghan training camps in recruiting extremists, and Al Qaeda operational methodologies such as the use of false documentation and clandestine tradecraft.\n\nMr. Young had not directly participated in the Almrei investigation. CSIS has only interviewed Almrei once just prior to his arrest in October 2001. They have not attempted to since. Young had read the interview notes and the transcript of an interview conducted by CIC that was entered into evidence. He indicated that the Service is reluctant to interview anyone involved in litigation. Their goal was to remove him from Canada and thought that they had completed their work after the first security certificate was upheld.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-6", + "id": "fc-57473-79", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 10–11", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 171–173", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In August 2016, after filing a brief statement of defence, the respondent filed a motion in writing seeking an order striking out the statement of claim in its entirety without leave to amend. In her order dismissing the said motion, Prothonotary Milczynski made it clear that the respondent had not relied on an alternative approach of challenging each type of claim and relief sought so that at least some portions of the statement of claim could be struck. Having found that it was not clear that the appeal pursuant to section 135 of the Customs Act was without merit and that Mr. Hociung had to institute a separate action for his other causes of action, the Prothonotary dismissed the motion. That said, she expressly noted that the respondent would not be prevented from seeking an order striking out portions of the statement of claim at a later stage, once Mr. Hociung filed the motion to amend he alluded to in his representations before her.\n\nOn February 20, 2017, Mr. Hociung filed a motion in writing to amend his statement of claim. On March 1, 2017, the respondent filed the motion for summary judgment that resulted in the decision under appeal in this file. Despite the Prothonotary’s comments, once again, rather than relying on arguments targeted at each type of claim and relief sought, the respondent asked for the dismissal of the entire action, even in its amended form based on what the respondent considered the only genuine issues. These consisted of two questions of law: (i) whether, in an action brought under section 135 of the Customs Act, a plaintiff may claim damages or seek mandamus, and (ii) whether collector coins are “currency” or “goods” for the purpose of the Customs Act.", - "current_to": "2019-08-07", + "text": "Based on all of the available information, Mr. Young testified, the Service assessment is that Almrei supports the extremist ideology espoused by Osama Bin Laden, that he has connections to persons who share that ideology and that, through his involvement in an international document forgery ring, the Service believes he has the ability and capacity to facilitate the movement of extremists in Canada and abroad who could commit terrorist acts. They consider that he has a “pedigree” with the skill sets that would make him useful to a terrorist organization.\n\nAlmrei’s participation in jihad on several different occasions is a concern to the Service, in particular because he has never renounced jihad and took pride in his willingness to participate in violence against others because of his religious or ideological beliefs. Mr. Young said that the Service’s assessment was that Almrei’s jihadist forays were not a one-off occasion such as might be expected from a curious young man.\n\nThe Service position is that jihad is the same whether it is undertaken in one part of the world or globally. The person who engages in jihad is, in the Service view, willing to inflict violence and seeks to impose his will on the sovereignty of other nations. Their concern with Almrei is that they believe he would be willing to engage in jihad again when he believes it is justified to inflict violence in a political situation.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-7", + "id": "fc-57473-80", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 12–14", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 174–176", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "It is not disputed that in an appeal pursuant to section 135 of the Customs Act, a plaintiff cannot contest decisions such as the imposition of a penalty made under other provisions of the Customs Act, for generally such decisions must be contested by an application for judicial review to be filed within 30 days of the decision, rather than an ordinary action filed within the 90 days from the notification of the ministerial decision (see for example Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724; Starway v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1208) and very recently Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170 at para. 9).\n\nRelying on the jurisprudence referred to in the Federal Court’s reasons (the Reasons) at paragraphs 27 to 29, the respondent sought to exclude any other claims or relief from the statement of claim on the basis that these were also outside the scope of section 135. Presumably, rather than dealing with the numerous legal issues arising from the nature of those allegations including jurisdiction and standing, this offered an easier way to dispose of the numerous claims and relief sought by Mr. Hociung.\n\nObviously, unless the respondent succeeded on the first question of law, the answer as to the second question of whether Mr. Hociung’s collector coins were “goods” or “currency” could not warrant the dismissal of the statement of claim in its entirety (see Reasons at paras. 16 to 20). Indeed, as acknowledged by the respondent’s counsel at the hearing before us, unless a joinder of causes of action is precluded, the answer to the second question clearly could not justify the dismissal of the claim for damages based on threats of violence by a CBSA officer.", - "current_to": "2019-08-07", + "text": "Mr. Young noted that Almrei came to Canada from Jordan on a false U.A.E. passport which he claimed to have destroyed upon arrival. A search by immigration officials of Almrei’s apartment later revealed the false U.A.E. passport. In the Service’s view this is consistent with a person who is sympathetic to the jihadi cause, in that the travel document could be re-used by associates or others involved in jihadism.\n\nOn cross-examination Mr. Young conceded that many people cross borders using false documentation who have no relationship with extremist groups. He agreed that this factor wouldn’t be alarming on its own. However, combined with all the other issues and facts known from the open information, it contributes to a greater concern for the Service.\n\nAlmrei’s connection to the Muslim Brotherhood was also a basis for concern because of that group’s links to terrorism in the past. While the Service has no information linking Almrei to membership in the organization, his claim for refugee status was based on persecution due to the political beliefs of his father who had been a prominent member. He also claimed that his Syrian passport was provided to him by the Muslim Brotherhood. That, in itself, did not carry much significance Mr. Young said, on cross-examination. He also agreed that inaccurate information was provided to the Service by CIC regarding Almrei’s refugee claim. He had never claimed, as reported by CIC, that his father had been killed and his mother imprisoned by Syria.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-8", + "id": "fc-57473-81", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 15–17", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 177–180", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "I ought to note that there are obvious difficulties arising when a party is self-represented and may lack legal knowledge and some or all of his claims may be without merit. Despite this reality, defendant’s counsel has the duty to put before the court a motion including all of the appropriate grounds and authorities that will enable the Court to efficiently strike out or dismiss a claim on the basis that it has no merit. Efficiency and proportionality do not justify undue legal shortcuts.\n\nThe Federal Court dismissed the action after reformulating the first question as follows: “Is an action commenced pursuant to section 135 of the Customs Act limited to a determination of whether there has been a contravention of the Customs Act?” It found that anything other than whether or not Mr. Hociung had contravened section 12 of the Customs Act was beyond the scope of a section 135 action and must be pursued in other proceedings (Reasons at paras. 25 to 32). Except for a brief mention at paragraph 26 of the Reasons that it had not been persuaded by Mr. Hociung that section 135 allows for a joinder of various causes of action, the Federal Court did not explain why it excluded the application of Rules 101and 106 of the Federal Courts Rules, S.O.R./98-106 (the Rules), from the ambit of subsection 135(2) of the Customs Act (See paragraph 21 below).\n\nIn respect of the second question, it held that the collector coins at issue are “goods” within the meaning of section 12 of the Customs Act and had to be declared. Thus, Mr. Hociung had contravened the Customs Act and his collector coins could be seized on that basis.", - "current_to": "2019-08-07", + "text": "Mr. Young suggested that Almrei was in a position to use his honey and perfume business as a cover to travel to countries to participate in jihad or to further the cause of Islamist extremism.While there is no evidence that Almrei did in fact use this trade to conceal weapons or to raise funds for extremist activities, that type of business has been used by extremists for such purposes in the past.\n\nOn cross-examination, Mr. Young acknowledged that the Court had found in a 2005 detention review hearing that the role of the honey business was speculative. He agreed that there is no new evidence to support an adverse inference from this activity. Counsel for the Ministers indicated that they would not ask me to take a position different from that reached by my colleague in 2005.\n\nIn the October 2001 interview, Almrei denied having been to a number of countries, which later turned out by his own admission to be untruthful, notably Afghanistan and Tajikistan. In Mr. Young’s mind that raised the question: after having been recognized as a refugee claimant and having secured a certain status in Canada, why would he continue to lie? Almrei has also admitted that he withheld information from the Service and from the lawyer. He has thus demonstrated a pattern of being untruthful, which has made it difficult for the Service to actually discern what Almrei has done in the past and to what degree.\n\nAlmrei’s participation in the training camps goes beyond just a philosophical adherence to an ideology, according to Mr. Young. It shows a real commitment to follow through on that violent ideology, to take the time, put one’s life at risk, to follow up on that cause, be willing to kill people because of a belief in jihad.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-9", + "id": "fc-57473-82", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 18–20", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 181–182", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Furthermore, the Federal Court found that even if in its view these type of coins may also have to be declared when their denomination value was over the limit of $10,000 CAD or its equivalent in foreign currency (section 12 of the Proceeds of Crime Act and section 2 of the Reporting Regulations), the fact that these coins are also “goods” under the Customs Act does not create a true conflict between the relevant legislative provisions (Reasons at paras. 68 to 72).\n\nImportantly, the Federal Court also noted that the question of whether duties were payable on these “goods” was not the issue in the action, as the obligation to declare under section 12 of the Customs Act was not limited to “goods” on which duties are actually payable (Reasons at paras. 63 to 66).\n\nThis appeal raises the following main issues: Did the Federal Court make a reviewable error in answering the two questions raised in the respondent’s motion? Is there a reasonable apprehension of bias as alleged by Mr. Hociung?", - "current_to": "2019-08-07", + "text": "Regarding Almrei’s travels to Tajikistan, Mr. Young said he could only speculate about the reasons. He thinks it unlikely that all Almrei was doing there was participating in scouting missions. In his view, the purpose, in military terms, was to conduct pre-operational reconnaissance in advance of an attack to kill people. Supporting the jihad in Chechnya is also of concern. As is Almrei’s visits to Sayyaf’s and Khattab’s guesthouses and camps. Guest houses were the initial reception areas for would-be mujahidin. They would receive basic ideological indoctrination. Passports and other identification were retained there. Thereafter, they would only use a kunya or nom de guerre.\n\nOn cross-examination, the witness agreed that many of the men who went to Afghanistan in the late eighties were financed and encouraged by the Saudi government and the US. Their motivation was essentially to push the Russian infidel invaders out of a Muslim country and rejection of the Marxist, atheistic communist government in Kabul. For the Americans, Afghanistan was a cold war surrogate in the effort to weaken the Soviet Union. The fact that a person went to Afghanistan during the Soviet presence or the communist government doesn’t mean they are associated with Bin Laden, but it would be of concern to the Service.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-10", + "id": "fc-57473-83", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 21–22", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 183–185", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Subsection 12(1) and section 135 of the Customs Act read as follows: 12 (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. 12 (1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions réglementaires, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. 135 (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. 135 (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur. Ordinary action Action ordinaire (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions.\n\nRules 101 and 106 as well as some of the other relevant provisions referred to herein are reproduced in Annex 1.", - "current_to": "2019-08-07", + "text": "Mr. Young considered that there was not much difference between offensive and defensive jihad as the latter may involve offensive action. He agrees that most of those who went to Afghanistan in the 1980s and early 1990s would have gone home afterwards to get on with their lives. The US decision to support the jihad as a surrogate war against the Soviets was ill-conceived in his view. In any event, there is nothing to compare that action with the present day role of the coalition forces in Afghanistan supporting the Karzai government.\n\nThe witness testified that the Service view of Khattab is that he was a committed jihadist. This was derived from numerous sources. While it may be premature for history to come to any conclusions about his activities, he acknowledged, Khattab knew Bin Laden and may have received funding from Al Qaeda. Khattab was allied with Basayev, the Chechen insurgent leader believed to have committed terrorist acts and worked to establish a Muslim Caliphate in the region. His reputation in the early 1990’s was that of a fierce and fearless fighter and brilliant commander. Young believes that Khattab’s major contribution to what had begun as a sectarian conflict in Chechnya was to Islamicize the fight.\n\nYoung didn’t dispute that the Service has expressed a more benign view of Khattab in other proceedings. In Exhibit A-16, Appendix D to the 2008 Harkat summary, the following appears at paragraph 4: “…contrary to Bin Laden, Ibn Khattab has never been quoted as calling for a struggle between Islam and the West, and has never called for Jihad against America or Jews. His struggle was against Russia and its occupation of the Caucasus.”", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-11", + "id": "fc-57473-84", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 23", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 186–188", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "It is well established that on a motion for summary judgment, the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, apply (Hryniak v. Mauldin, 2014 SCC 7 at paras. 81 and 84). Thus, the standard of correctness applies to questions of law, while questions of fact and of mixed fact and law are reviewed on the standard of palpable and overriding error.", - "current_to": "2019-08-07", + "text": "But in an Associated Press story out of Moscow dated September 14, 1999, Khattab was quoted as speaking approvingly of terrorist attacks against Russian civilians (A-15) and in another article, against American military forces in Saudi Arabia: “… Muslims have the right to seek such a solution.” (Ex. A-1, V.1, T-4, p.2). Mr. Young acknowledged that there were conflicting accounts about Khattab’s statements and that some of this might be attributable to Russian propaganda.\n\nIn cross-examination, Mr. Young said he hadn’t seen much to substantiate the claim in paragraph 63 of the summary regarding Khattab other than the claims of the author of “Chechen Jihad”. He acknowledged that the author, Josef Bodansky, has been criticized for relying on Russian sources and for failing to identify his sources. FBI headquarters did not believe that Khattab was closely connected to Bin Laden or was hostile to the US (T-137 p.10). The fight in Chechnya was largely nationalistic and not ideological. Young is not aware of any contrary information to that given by Almrei in his statutory declaration regarding his contacts with Khattab between 1994 and 1997.\n\nAlmrei’s association with Nabil Almarabh was also a concern to the Service. Almrei had met him at a camp in Kunduz in 1994. In Ontario in 2001, he contributed funds for Almarabh’s release on bail and acquired a false passport for him. Almarabh was taken into custody in the US after 9/11 on a material witness warrant as a suspected terrorist. He was released in 2004 and deported to Syria after being cleared of all terrorist allegations (Ex. A-1, T-98). Testimony before a US Congressional committee in August 2006 (Ex. A-1, T-99) claimed that he was linked to terrorist suspects.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-12", + "id": "fc-57473-85", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 24", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 189–191", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "As mentioned earlier, Mr. Hociung’s main argument is that Rule 101(1) allows him to request relief in his action in respect of more than one claim. Pursuant to Rule 101(3), not all parties to the action need have an interest in all relief claimed in the said proceeding. Mr. Hociung submits that if Parliament intended to exclude the application of this Rule to actions instituted pursuant to section 135 of the Customs Act, it would have used explicit language similar to the one used in subsection 81.28(3) of the Excise Tax Act, R.S.C., 1985, c. E-15 (the Excise Tax Act), which deals with actions brought under that section. The relevant portion of the provision reads as follows: (3) An appeal to the Federal Court under this Part is deemed to be an action in the Federal Court to which the Federal Courts Act and the rules made under that Act applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals and except that (3) Un appel à la Cour fédérale en vertu de la présente partie est réputé être une action devant celle-ci à laquelle la Loi sur les Cours fédérales et les règles établies conformément à cette loi s’appliquent comme pour une action ordinaire, sauf dans la mesure où l’appel est modifié par des règles spéciales établies à l’égard de tels appels, sauf que : (a) the rules concerning joinder of parties and causes of action do not apply except to permit the joinder of appeals under this Part; a) les règles concernant la jonction d’instances et de causes d’action ne s’appliquent pas, sauf pour permettre la jonction d’appels en application de la présente partie; […] […]", - "current_to": "2019-08-07", + "text": "Mr. Young conceded that it is reasonable to assume that a number of contacts would have dried up while Almrei was in detention for seven years. He thinks it is equally reasonable to assume that others are still in business. A concern regarding Mr. Almrei is that he would continue along the path that he has chosen thus far in life, to connect with people involved in fraudulent documentation to assist the cause.\n\nMr. Young had reviewed all of the open documentary record. The CSIS process in preparing the SIR is that after preparation by the Security Screening Branch, it goes up through several levels of review, including legal advice. The case is brought forward to the Director for approval and ultimately to the two Ministers for signature. The public summary and supporting reference documents are also prepared by the security screening branch. Great care is taken to ensure accuracy. The Service seeks to file reliable and balanced material as it goes to the credibility of the Service. The author’s history or pedigree, sources, footnotes, etc., may be important. The Service doesn’t differentiate between open and closed sources and seeks to corroborate the facts.\n\nOn cross-examination, Mr. Young was taken to a reference at paragraph 30 in the public summary (fn 62, T-122, Edmonton Journal article) to a confession disclosed in US military commission proceedings by a person described as a veteran Al Qaeda operative; Waleed bin Attash. Exhibit R-11, Report of the International Committee of the Red Cross to the CIA dated February 14, 2007 discusses bin Attash’s treatment following his arrest in Karachi in April 2003. This is corroborated by Exhibit R-12, the August 1, 2002 US Department of Justice memorandum authorizing the CIA to use “enhanced interrogation techniques”.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-13", + "id": "fc-57473-86", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 25–27", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 192–195", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Subsection 135(2) of the Customs Act clearly indicates that the Rules apply to an action instituted under subsection 135(1), except as varied by special rules made in respect of such actions. The Customs Act does contain some specific provisions such as its subsection 106(3), which deals with stays of actions and other proceedings that could be viewed as special rules within the meaning of subsection 135(2). However, the respondent did not direct us to any provisions of the Customs Act setting a special rule that could preclude the application of Rules 101 and 106. I have not found any.\n\nThe case law holding that in an action pursuant to section 135, a party cannot seek judicial review of decisions other than whether there has been a contravention to the Customs Act is of no help here. None of the decisions relied upon by the Federal Court and the respondent deal with the issue before us or rely on reasoning that could be relevant to the interpretation of the current issue.\n\nThe Rules are very liberal in their treatment of joinders of parties and causes of action. However, this right is subject to the overriding discretion and power of the Court to sever claims as provided by Rule 106. Before severing claims pursuant to that provision, the Court must carefully weigh the prejudice to the plaintiff, if any. Severing claims pursuant to Rule 106 is not the same as dismissing an action for summary judgment. It is a procedural order that is usually followed by appropriate directions detailing how to sever the claims. Certainly, it should be done in a manner that would not preclude a party from pursuing an otherwise valid claim because it would now be time-barred.", - "current_to": "2019-08-07", + "text": "Mr. Young agreed that it was a mistake for the Service to include the reference to the confession as it was likely obtained through abusive treatment falling within the scope of the exclusion in IRPA ss. 83(1.1). CSIS does not rely on information obtained by torture, according to Mr. Young and public statements by the Director and Minister. He noted that information obtained five years ago from Guantanamo may have been treated as reliable at that time. Now it would have to be reconsidered given more recent disclosures about the manner in which it may have been obtained. As noted above, the Ministers have withdrawn this information.\n\nOn cross-examination, Mr. Young was taken to several other documents in the reference indices that relied upon information that may have been obtained under “enhanced interrogation techniques”: e.g., T-52, T-123, T-128. He agreed that the information would be tainted if it had been obtained under duress.\n\nThe witness was also taken to a selection of documents relied upon as references in the amended summary which contained information that was later proven to be inaccurate. For example, a news report in T-105 regarding an allegedly bungled Al Qaeda arms experiment involving the poison ricin (Ex. R-16, R-17). Mr Young agreed that the report in T-105 should not have been used by CSIS without checking the facts.\n\nParagraph 31 of the summary references an AP report reprinted in a Jane’s publication that Columbian authorities had linked a forgery ring to Al Qaeda. CSIS relied on it as the source for a statement about false document usage. Other, more authoritative sources cast doubt on the story (Ex. R-19 and R-20). On re-direct, the witness said the Jane’s report is accurate.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-14", + "id": "fc-57473-87", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 28–31", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 196–198", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "In the same manner that the respondent’s motion, which refers to Rule 221 as opposed to Rule 215, was considered a proper motion for summary judgment by the Federal Court, despite this error, Mr. Hociung’s action must be considered for what it is – an action where he has included more than one cause of action and where he seeks more than an appeal of the Minister’s decision under section 135 of the Customs Act.\n\nBecause the Federal Court erred in its conclusion in respect of this first question, it could not simply dismiss the action in its entirety on the sole basis that there had been a contravention to the Customs Act without examining if and how all the causes of action and relief sought were affected by such determination.\n\nI will comment further on what order could be granted on this motion and in this appeal in section V of these reasons after reviewing whether the Federal Court erred in concluding that the coins at issue were “goods” that had to be declared under subsection 12(1) of the Customs Act.\n\nBefore us, Mr. Hociung argues that as the purpose of the Customs Act is to collect custom duties, the obligations set out in section 12 of the Customs Act can only apply to goods on which duties are payable. Even if his coins were “goods”, a conclusion that he also contests, because they were either exempted from taxes or subject to a zero custom duty rate, there was no obligation to report them. I will deal with this argument first. If I find that the obligation to report applies regardless of whether duties are payable, I will review whether as argued by Mr. Hociung, his coins fall outside of the ambit of “goods” as this word is used in section 12.", - "current_to": "2019-08-07", + "text": "In my view, the Jane’s report is accurate only in the sense that it accurately reports a statement by the Columbian Attorney-General. That statement was without a factual foundation as the respondent’s exhibits effectively demonstrated.\n\nThe witness was taken to a statement in paragraph 14 of the amended summary that relied on a TimesONLINE report dated February 4, 2009 (fn 22 referencing T-109) for the claim that terror suspects under house arrest in the UK have maintained contact with terrorists and remain determined to mount terror attacks in the future. The TimesONLINE report took a few words out of context from the Fourth Report by the Independent Reviewer on United Kingdom Terrorism Legislation (Lord Carlisle) at para. 58, p. 20 (Ex. R-21). The actual text states: My view is that it is only in a few cases that control orders can be justified for more than two years… there are a few controlees who, despite the restrictions place upon them, manage to maintain some contact with terrorist associates and/or groups, and a determination to become operational in the future.\n\nThis was turned into a headline that “Terror Suspects Plot Attacks While Under House Arrest” which was relied upon by the Service analyst who wrote the paragraph and who evidently did not check the actual source.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-15", + "id": "fc-57473-88", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 32–34", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 199–200", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Having considered the wording of section 12 in its context, harmoniously with the purpose and object of the scheme of the Customs Act and of this particular provision, I agree with the Federal Court that the obligation to declare is distinct from the obligation to pay duties which is dealt with under the title “Duties” starting at section 17 of the Customs Act. The obligation to report is not limited to goods that attract the payment of duties or other taxes.\n\nThere is nothing in the ordinary meaning of the wording of subsection 12(1) that would justify such a limitation.\n\nWhen one considers the wording of subsection 12(1) in the context of section 12 as a whole, subsection 12(7) becomes relevant. It provides that subject to three cumulative conditions, goods described in tariff item 9813.00.00 or 9814.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36 may not be seized as forfeit by reason only that they were not reported under subsection 12(1). It is telling that “goods” that fall within the description of the aforementioned tariff items will only be exempted from such seizure if “their importation is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any act of Parliament, other than this act or the Customs Tariff.” This is so, even if those goods are not charged with duties (see text of this provision in Annex 1).", - "current_to": "2019-08-07", + "text": "Mr. Young was taken to a number of other reference sources relied upon by the Service including excerpts from Wikipedia and other sources of unknown reliability. He agreed that there were problems in the use of such sources. Some are solely published on-line and provide no information about who is behind them or where they get their information. Other reports were stale by the time they were relied upon. That is, the information they contained was shown to be inaccurate, incomplete or misleading in later reports. For example, a CSIS threat assessment written in January 2005 contained inaccurate information about an April 2004 arrest (T-72, T-73, Ex. R-24)). This raises the question as to why the Service continued to rely on the earlier reports.\n\nThe witness agreed that the wording in paragraph 57 of the public summary left the impression that Abdul Rasul Sayyaf had a continuing relationship with Bin Laden whereas the sources placed their contacts to the period during the anti-Soviet jihad (see for example Ex. R-25). While the sources are clear that Sayyaf was a hard-line Islamist, Mr. Young agreed that after Bin Laden’s return in 1996, Sayyaf supported the Northern Alliance which was fighting Bin Laden’s Taliban allies. The evidence doesn’t support a continuation of the relationship after the anti-Soviet jihad. But in documents the witness was taken to on re-direct examination to clarify his evidence, it is clear that Sayyaf was also a deeply conservative Islamist with views just as extreme as those of the Taliban.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-16", + "id": "fc-57473-89", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 35–39", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 201–202", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Moreover, I cannot agree that the interpretation suggested by Mr. Hociung is mandated by the main purpose of the Customs Act. The officers of the CBSA are the persons charged with determining whether or not duties are payable and whether or not goods can be imported into Canada without any restrictions under other statutes. They cannot fulfill their statutory responsibilities unless goods are reported to them. To claim the benefit on an exemption or a zero rate of duty, one must first report the goods.\n\nSection 13 of the Customs Act also creates another obligation quite distinct from the payment of duties. It is an obligation to answer questions about the goods imported and to present those goods for inspection to an officer of CBSA when required to do so. This obligation arises whether or not duties or other taxes are due.\n\nThen, the Customs Act provides at section 18 who is liable to pay the duties as defined in section 2(1) of the Customs Act (see also The Excise Tax Act, section 212 which refers to persons liable under the Customs Act to pay duties on imported goods confirming that such an obligation arises from the provisions of the Customs Act itself).\n\nThere is no ambiguity, an exemption from the payment of taxes under the Excise Tax Act, or a zero custom duty rate in the Customs Tariff is not an exemption to report under subsection 12(1) of the Customs Act.\n\nIt appears from the case synopsis (Appeal Book, Volume 4 at page 655 and 658) that in the CBSA’s view, subsection 12(7) of the Customs Act did not apply to Mr. Hociung’s coins, which were imported for the first time into Canada. Mr. Hociung did not contest this particular finding. From my review of the description of the tariff items referred to in that provision, it is evident that he indeed had no basis to do so.", - "current_to": "2019-08-07", + "text": "Mr. Young gave his evidence in a clear, concise and professional manner. He conceded weaknesses in the material relied upon by the Service when the deficiencies were apparent on the face of the documents or there was conflicting information on the record. He also held firmly to the Service position that Almrei is a risk to national security. But his repeated references to the fact that Almrei had lied or withheld information made me wonder whether the Service gave this factor more weight than it deserved in their assessment of the threat posed by Almrei. It is an unfortunate reality that many people lie in their encounters with the authorities over immigration matters. Particularly those who come from regions of the world where telling the truth to the authorities may not be advisable. Hassan Almrei\n\nThe respondent testified on his own behalf and asked that the Court take into consideration that his memory of details may be faulty after more than seven years of detention. He said that he had deliberately avoided reviewing the records of his previous hearings so as to tell his story to the Court as he recalls it now. He testified on his own behalf, in English and without the aid of an interpreter. He has learned English while in detention, mainly from the prison guards, television and reading.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-17", + "id": "fc-57473-90", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 40–43", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 203–204", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Having determined that the obligation to report or declare all goods imported in Canada is not limited to “goods” which are subject to the payment of duties or other taxes, it is clear from the wording of the motion for summary judgment and the respondent’s written representations that the only other question that had to be determined is whether the actual coins seized were “goods” within the meaning of section 12 of the Customs Act.\n\nThere is no need, and it would be unwise for this Court to attempt to give an exhaustive definition of the word “goods”, considering the Customs Act does not contain such an exhaustive definition. Indeed at section 2, it simply states: goods, for greater certainty, includes conveyances, animals and any document in any form; (marchandises) marchandises Leur sont assimilés, selon le contexte, les moyens de transport et les animaux, ainsi que tout document, quel que soit son support. (goods)\n\nThe word “goods” is intended to be used in the broadest sense possible considering that in its ordinary meaning; it would not usually be understood to include “any document in any form”.\n\nNeither party relied on any case law dealing with the ambit of section 12 of the Customs Act or on the legislative evolution of that section. However, Mr. Hociung and the respondent have referred to several statutes, including the Customs Tariff, the Excise Tax Act, the Proceeds of Crime Act, the Currency Act, the Royal Mint Act, R.S.C., 1985, c. R-9 and related regulations. Although I have considered them, I need not refer to all of them for I find that the Customs Tariff provides the most useful indication of the legislator’s intention as to whether coins that have legal tender such as those under consideration are included in the word “goods”.", - "current_to": "2019-08-07", + "text": "In the respondent’s view, this was the first time that he has been able to give his complete story to the Court. He says that during the first security certificate proceedings in 2001, he refused to testify because he feared for the safety of his family and friends if he gave evidence in public. In his view, his opportunity to provide evidence during subsequent hearings was limited as the finding that he was a security risk had already been made and the question at those hearings was whether he should continue to be detained pending the outcome of removal proceedings. Almrei believes the process remains unfair, notwithstanding the involvement of the Special Advocates, as he does not see the closed information.\n\nAlmrei testified that he was born on January 1, 1974, in Syria, the fourth child of eleven. The family moved to Dammam, Saudi Arabia in 1981 because of a fear of persecution in Syria. Most of his family continue to live in Saudi Arabia. He has a sister in Lebanon and one sister and brother in England. He is the only sibling not to have attended university. His father taught Islamic studies in elementary school and taught at a mosque in the evenings which is where Almrei began to memorize the Koran from the age of five.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-18", + "id": "fc-57473-91", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 44–45", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 205–206", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Pursuant to section 4 of the Customs Tariff: Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe.\n\nNothing in the Customs Tariff provides otherwise in respect of the word “goods”. It is quite clear when one reads, for example, the definition of “Tariff Item” which basically is a description of “goods”, and section 10 of the Customs Tariff (See Annex 1) which deals with the classification of “goods” in the List of Tariff Provisions, that generally something listed under a Tariff item is within the ambit of the word “goods” in the Customs Act, particularly as used in section 12.", - "current_to": "2019-08-07", + "text": "Almrei is a hafiz, that is one who knows the Koran by heart. He also learned to recite it. Recital of the Koran is an art form in Islam. There are competitions for those who can do it well. Almrei says that he learned how to do this by buying tapes and emulating others. He also led others in prayer as an Imam. This is not the same as being a member of the clergy in the West, but simply refers to someone who has memorized the Koran and is able to recite it to lead others in prayer. Almrei does not consider himself to be an Islamic scholar but has read a great deal, particularly over the past eight years. He discussed his understanding of the basic tenets of the faith and the different schools of Islamic law.\n\nAs a young boy, Almrei testified, he told his family that he wanted to be known as Abu Hareth, because one of the Hadith of the Prophet refers to the name Hareth as particularly blessed. Almrei wished to give his son, when he had one, that name. Abu means father. The practice of adopting a kunya, or honorific and familiar name by which a male is known to family and close friends is common in the Middle East. It is often but not necessarily based on the first born son’s name. Abu Hareth became Almrei’s kunya from a young age. He says he did not adopt it as a nom de guerre, as the Ministers suggest, and did not attempt to conceal it from the authorities when he completed his refugee claim and was interviewed. He did not consider it a name that he should provide.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-19", + "id": "fc-57473-92", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 46", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 207–210", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "As explained in Canada (Attorney General) v. Igloo Vikski Inc., 2016 2 S.C.R. 80 (Igloo Vikski), the Customs Tariff “implements Canada’s obligation as a party to the International Convention Governing the Harmonized Commodity Description and Coding System…The Convention governs the Harmonized Commodity Description and Coding System (The “Harmonized System”) by which approximately 5,000 commodity groups of imported goods are classified” (Igloo Vikski at para. 3) (my emphasis). This system was developed to foster predictability and stability in classification practices internationally. “The Harmonized System uses an eight-digit classification system for tariff classifications, which is incorporated into the Schedule to the Customs Tariff” (Igloo Vikski at para. 5). Rather than using the example (Live Animals; Animal Products) used in Igloo Vikski, I will refer to some classification items related to what one would ordinarily consider “money” or “currency” such as issued banknotes that are legal tender (Tariff item No. 4907.00.00.12, see Annex 1), coins (Tariff item No. 71.18) including gold coins that are legal tender (Tariff item No. 7118.90.00.10 – see Annex 1), and silver or other metal coins (Tariff item No. 7118.90.00.99). There are other relevant Tariff items, but my point here is that the words “money” and “currency” are not used in the Customs Tariff or in the Customs Act except when a sum of money needs to be paid or value is considered (see for example sections 55, 132 and 133 of the Customs Act). Indeed the Harmonized System is a much more precise classification for imported goods. It is therefore not particularly useful to look at various statutory definitions of “money” or “currency” to construe section 12 of the Customs Act.", - "current_to": "2019-08-07", + "text": "Almrei’s father was a member of the Syrian branch of the Muslim Brotherhood (MB). His uncle and his uncle’s son had been jailed for their membership which was illegal in Syria at the time. His father had been sentenced to death in absentia. His mother was detained and interrogated on a later trip. Two of his uncles still live in Syria.\n\nThe MB is a transnational Sunni Muslim movement founded in Egypt in 1928. The political arm of the movement is legal in Egypt and serves as an opposition party. The MB was tolerated in other Middle Eastern countries such as Jordan. In Syria, it was proscribed as it had been involved in repeated efforts to overthrow the government.\n\nAn insurrection in 1981-82 was brutally suppressed by the ruling Baath party and membership was made a capital offence. Almrei testified that in 1982 as an eight-year-old boy attending mosque in Saudi Arabia he learned of the massacre in Hama, Syria in which thousands of Sunnis were killed by the Alewite controlled Syrian army.\n\nHe says that it was the memory of this event, in part, that later led him to declare to his father that he wished to join a jihad against those who would slaughter innocent Muslims. As a teenager he learned about the jihad in Afghanistan in the Mosque and through reading a Pakistani magazine. Among his siblings, he was the only one so motivated. The family initially treated it as a joke. At 16 he decided to go and sought his parents’ permission. His father’s conditions were that he complete high school and finish memorizing the Koran. As it turned out, he testified, he had completed the latter but not the former when he first went to Afghanistan in 1990 during the summer recess from high school. Almrei was then 16 years old.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-20", + "id": "fc-57473-93", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 46–49", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 211–212", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "It is also unnecessary to examine whether coins could be “financial instruments” under the Excise Tax Act.\n\nHowever, in light of Mr. Hociung’s argument that it would be contradictory to include anything falling within the definition of “currency” under the Proceeds of Crime Act in the definition of “goods” under the Customs Act, I must agree with the Federal Court that the interpretation of the Proceeds of Crime Act it adopted, even if it was not required in my view to do so to answer the question raised in the motion before it, does not result in a conflict between the Proceeds of Crime Act and the Customs Act. Those two statutes can both be applied without contradiction or conflict. The fact that under the Proceeds of Crime Act the obligation to report is more limited – it only applies to currency and monetary instruments over the limit set out in the Reporting Regulations, cannot justify restricting the proper interpretation of section 12 of the Customs Act which Parliament clearly did not see fit to amend when it adopted the Proceeds of Crime Act in 2000.\n\nI therefore conclude that the Federal Court did not err in law when it concluded that the coins were “goods” subject to the obligation to declare provided for in section 12 of the Customs Act.\n\nAs mentioned, to determine this appeal, it is not necessary for this Court to deal with the issue of whether or not the subject coins could fall within the definition of “currency” of the Proceeds of Crime Act in other cases. That said, I note that the respondent did not challenge the findings of the Federal Court in that respect, particularly those found at paragraphs 35 and 53 of the reasons.", - "current_to": "2019-08-07", + "text": "Almrei described his understanding of jihad as an inner struggle. He regarded the jihad in Afghanistan to be a legitimate struggle against the Russian invasion. The killing of innocents is contrary to the Koran. The Koran says fight in the name of Allah, those who fight you; do not be the aggressor; do what you need to do but no more. Bin Laden and others do not read the entire Koran. They use some verses from the Koran and the hadith but not the whole thing. The Muslim ummah agreed that what was going on in Afghanistan was a legitimate jihad. Bin Laden and others will go anywhere to kill others. That is not jihad. There are conditions and limits to what is permitted in jihad even where a Muslim land becomes occupied.\n\nRegarding 9/11, Almrei is not sure whether it was a political or a religious act. In religious terms it was against Islam first because the hijackers killed themselves. In Islam they are murderers. This was fitna or a bad thing. Many people died. In political terms it made no sense also as it could not help the Palestinian people or other Muslims. He describes himself as anti-American policy, but not anti-American. He had no objection to the presence of the American troops in Saudi Arabia and thought it was good for business. That could not be the occasion for jihad as they had come with the permission of the legitimate government with the approval of the ulemma or community of scholars.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-21", + "id": "fc-57473-94", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 50–53", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 213–214", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Mr. Hociung alleges that the Federal Court judge was biased against him. He points specifically to paragraph 16 of the Reasons where the Federal Court states “the plaintiff does not dispute that the issues identified by the defendant are genuine issues. However, the plaintiff submits that there are additional issues raised in the statement of claim to be addressed in the course of the action. I disagree.”\n\nMr. Hociung also indicates that bias can be inferred from the fact that the Federal Court relied on “evidence” that was not relied upon by the parties in paragraphs 58 and 60 of the Reasons. At paragraph 58 of the Reasons, the Federal Court refers to the definition of “goods” at subsection 2(1) of the Customs Act and at paragraph 60 to section 123 of the Excise Tax Act where the word “money” is defined.\n\nThe applicable standard here is a reasonable apprehension of bias (Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at page 394). The apprehension must be a reasonable one and the test is: what would an informed person, viewing the matter realistically and practically – in having thought the matter through – conclude. This is a difficult test to meet. There is a strong presumption that judges are performing their duties in an unbiased way, and cogent evidence must be adduced to support such a serious allegation.\n\nI have no hesitation in concluding that Mr. Hociung’s allegation is baseless. Unfortunately, as is often the case with self-represented litigants, it appears to be the result of a misunderstanding of the law and the task to be performed by a court when required to construe legislation before it.", - "current_to": "2019-08-07", + "text": "In 1990, he went to Afghanistan during his summer break from high school to fight the Russians and the communist regime they had left in place. He did not differentiate between the two. He flew from Damman to Islamabad, Pakistan and from there went by bus to Peshawar, the usual “staging area” for Arab jihadis entering Afghanistan. A government office in Riyadh had provided advice and a 75% discount on the price of an air ticket. He traveled on a Syrian passport which was valid for two years renewable every six months. His father sent it to the MB to get an extra stamp to allow him to travel to Afghanistan. He had not done the obligatory military service in Syria and they would not let him travel outside the region. The MB stamps looked like valid Syrian stamps. He did not himself join the MB.\n\nThe bus took him to Beit al Ansar (House of Supporters) in Peshawar along with twenty or so others. This was big house in a nice neighbourhood with lots of rooms. They slept four or five to a room and also ate there. At Beit al Ansar, people ate, chatted, slept, hung around together. They could go out to restaurants or to the Mosque. People who had been to Afghanistan would come back for a rest. They did not talk about their personal lives. You would be regarded as an informer if you asked. There were many other houses in Peshawar for people of different nationalities. They didn’t pay. He stayed 27 days and became infected with malaria. His father told him to come back.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-22", + "id": "fc-57473-95", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 54–56", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 215–217", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "The fact that the Federal Court may have reached the wrong conclusion at paragraph 16 is in no way evidence of a bias, real or apprehended. Otherwise all decisions reversed in appeal or quashed on an application for judicial review based on an error of law or any other reviewable error would raise such an apprehension. This is simply not so.\n\nStatutory provisions, including definitions in statutes put in play by the issues before a court, are not “evidence”. When asked to construe a statute, a court may refer to the provisions that are clearly relevant as they are part of the context it must consider to reach its decision. I also note that there would have been no benefit to seek the parties’ views on those legislative provisions which they allegedly fail to expressly refer to, for they are quite unambiguous, and were clearly relevant to the issues raised by them.\n\nIn fact, when one considers the decision as a whole, especially the fact that the Federal Court dealt with the issue of whether collector coins could be included in the definition of “currency” under the Proceeds of Crime Act, it becomes clear that the Federal Court did not do what an allegedly bias decision maker would be expected to do. It did not accept the interpretation proposed by the respondent. It clearly endeavoured to answer Mr. Hociung’s preoccupation with the CBSA’s restrictive interpretation. Although Mr. Hociung may not agree with the interpretation of the Federal Court, the fact remains that he got more in that respect than he might otherwise have been entitled to on this motion.", - "current_to": "2019-08-07", + "text": "Almrei returned home for treatment. He missed the first semester of school that year and asked his dad when he recovered if he could go back. He returned to Pakistan in 1991 with a flight again subsidized by the government. This time he met an older man on the plane, Sala’ud’din, told him where he was going and that he had memorized the Koran. Sala’ud’din suggested that he go to an Afghan camp rather than one run by the Arabs. He went with him in a taxi to Pabbi (or Babhi), a village near Peshawar controlled by Abdul Rasul Sayyaf.\n\nAlmrei knew of Sayyaf from the magazines he had read in Saudi Arabia. The Pakistan government had given each of the seven mujahidin groups in Afghanistan land for their refugees. Pabbi was Sayyaf’s camp. It was well established with schools, etc. He stayed at one of Sayyaf’s guest-houses because he was with Sala’ud’din. He met Sayyaf there. Almrei stayed for a few weeks waiting for a supply truck from Jalalabad and went back in the truck to a camp in Afghanistan. He testified that it is not what you might expect from the term “camp”. It was no more than a mud house farm with a corner to pray in and a village near by.\n\nThis was the Shahid Bilal camp near Jalalabad. The person in charge, Samir al Haq, showed him how to use an AK-47. This took about an hour to learn how to clean it, shoot it, etc., and then he was given one to use himself. He practised shooting at targets. While there were several other types of weapons there he did not train in their use. There were no other forms of training. He was there as a guest and could leave at any time. No one had a uniform; everyone wore the same clothes; there were no officers.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-23", + "id": "fc-57473-96", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 57–58", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 218–220", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Having correctly concluded that there was a contravention to section 12 of the Customs Act, the Federal Court had the power, pursuant to Rule 215(3), to dismiss all the allegations relating to the appeal pursuant to section 135 of the Customs Act as it involves no other genuine issue. Its legal conclusion in respect of section 12 could also be sufficient to justify dismissing the claims for damages based on the allegations that the seizure constituted a fraud and a misapplication of the Customs Act in this case. On the other hand, as mentioned, it could not dismiss the claim based on alleged threats of violence.\n\nAlthough Mr. Hociung has attempted to summarize his various claims at paragraph 14 and again on page 15 of his memorandum of fact and law, I do not consider that this Court had the benefit of sufficient representations by the parties to render the decision that the Federal Court should have rendered had it properly exercised its power under section 215(3) of the Rules. Obviously, this Court cannot simply dismiss the motion for summary judgment, given its conclusion that there was a contravention to section 12 of the Customs Act. Thus, there is little choice but to return the matter to the Federal Court, who will be in a better position to deal with this issue after seeking additional written representations by the parties as this motion was made in writing pursuant to Rule 369.", - "current_to": "2019-08-07", + "text": "The others at the camp were Afghan mujahidin belonging to Sayyaf’s group. Sala’ud’din left after a few days, but Almrei stayed on for two months. He says that he spent his time largely teaching Arabic and leading prayers. When supplies were delivered to other camps in the area, he would often go along for the ride. Almrei says that in staying at the camp, he was practising rebat, or garrison duty; a form of jihad. He could hear occasional skirmishes but he himself did not see or take part in any fighting. He never saw Sayyaf there.\n\nAlmrei describes himself as a naïve 17 year old at that time. He thought that he would go do jihad, get killed and go to paradise. Sala’ud’din had educated him about the reality of jihad in Afghanistan. Sala’ud’din advised him to avoid the problems at the Arab camps. He said that if you have 10 Arabs in one place, you have 11 emirs. Almrei says that he had heard of Bin Laden in Saudi Arabia but never met him. He did not know or understand his politics.\n\nHe went home after the two months at the camp to finish high school. This took another year. At summer vacation in 1992 he returned to the Sayyaf guest house in Pabbi and the Shahid Bilal camp near Jalalabad. This trip took two months because that was the length of his summer vacation. He also visited Karachi on that occasion. Samir ul Haq was still in charge and gave him another AK-47. He met Sayyaf on that trip at the mosque in Pabbi, just to say hello. Sayyaf had no interest in a 17 year old. They never had a one to one meeting. In Peshawar and other locations he would get a room and just wander around.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-24", + "id": "fc-57473-97", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 59–62", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 221–224", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "That said, before concluding, I ought to add some comments for the benefit of Mr. Hociung. Now that it is clear that his appeal pursuant to section 135 of the Customs Act and his claims based on fraud and misrepresentations as to the right of the CBSA to seize his coins do not raise any genuine issue for trial, I urge him to seek legal advice so that he may seriously reassess whether he wishes to pursue whatever claims or allegations may remain in his statement of claim.\n\nThe fact that this appeal may be granted in part should not be construed in any manner as meaning that whatever claims or relief ultimately remaining have any chance of success. Clearly at this stage, this Court is not in a position to make such a finding, especially not having heard arguments from either side on the numerous legal issues raised by the melting pot of claims that may remain.\n\nMr. Hociung is a well-educated and intelligent man who clearly devoted much effort to researching the law. However, the fact remains that the issues raised in his action are highly technical and complex.\n\nFor example, he may not appreciate that the Federal Court does not have any inherent criminal jurisdiction to deal with offences under s. 469 of the Criminal Code or to impose penalties under the said Code. Also, in S.A. Metro Vancouver Housing Corp., 2019 SCC 4, the Supreme Court of Canada recently reiterated at paragraph 60 that: [d]eclaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought […].", - "current_to": "2019-08-07", + "text": "Following graduation from high school, he worked for three months at a Saudi charity that built schools, hospitals and orphanages in Africa. He also ran a business selling incense, honey and perfume.\n\nIn 1994, he started hearing about the Russian occupation in Tajikistan in the Mosque in Saudi Arabia. Tajiks were becoming refugees in Afghanistan. He decided to go and see for himself. Asked for his father’s permission again. There was no discount this time from the Saudi government. He returned to Pabbi, inquired about Tajikistan and was told about Ibn Khattab. He went to Khattab’s guest house nearby and met Khattab later after evening prayers. They both spoke with a Saudi accent and Khattab was only three years older than him at that time. Khattab was also from Damman and still had family there whom Almrei later got to know. Khattab’s family was Bedouin from Aram in Northern Saudi Arabia and his father worked for the oil company Aramco.\n\nAlmrei travelled on to Khattab’s houses in Paghman, near Kabul, and Kunduz in the north where the Tajik leader Ahmed Massoud was based. Fighting was underway at that time (late 1994) between Massoud’s and Dostum’s forces and those of the Pashtun leader Hekamatyar. Massoud and Dostum were loyal to the Prime Minister Rabbani. The Afghans had been fighting each other since the fall of the Najibullah government in 1992. Almrei says that Khattab had decided to go to Tajikistan as that was still a jihad against an external oppressor. They were ashamed of what was going on in Afghanistan with Muslims fighting Muslims.\n\nAlmrei says he met Nabil Almarabh for the first time at the Kunduz house. Almarabh was passing through and stayed for just a few days.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-25", + "id": "fc-57473-98", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 63–64", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 225–226", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "It is certainly not clear to me at this stage, given that the only basis on which Mr. Hociung’s coins were seized was a contravention to the Customs Act, that there is any real, as opposed to a theoretical dispute left, and that Mr. Hociung has a genuine interest (in the legal sense) in its resolution. This is why, among other things, legal advice at this stage would be most appropriate. It would also ensure that Mr. Hociung does not unduly expose himself to the payment of court costs should his remaining claims ultimately fail.\n\nThe appeal should be granted in part; the judgment of the Federal Court dismissing the action in its entirety should be quashed. The matter should be returned to the Federal Court for determination of which claims and relief can properly be dismissed on the basis of the Federal Court’s finding that Mr. Hociung has contravened section 12 of the Customs Act and the CBSA was legally entitled to seize his coins under the Customs Act. Obviously, this should not be construed as limiting any other order the Federal Court may choose to issue under Rule 215(3).", - "current_to": "2019-08-07", + "text": "The Tajik refugee camp at Kunduz was led by Abdullah al Noury, a leader of the Tajik United Opposition party. There were many charitable organizations working to improve conditions and Khattab had offered to help. Almrei says that he became aware that they had a need for a girl’s school. He says the Tajiks were more open to education for women.\n\nAlmrei walked back to Jalalabad and went home to Saudi Arabia. While in Ryadh to buy oud for his business, he approached the Al Haramain Foundation and asked them for funding for a school for girls in Kunduz. He gave the name of a scholar from his home city as a reference. They gave him a cheque for 120,000 Rials (about $33,000 Cdn at the present exchange rate) which he cashed in to travel with. He returned to Pakistan in late 1995 and travelled from Pabbi to Kunduz with a guide and two Arabs mainly on foot and turned the money over to the men in charge of the camp.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-26", + "id": "fc-57473-99", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 227–228", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Given that success was divided on the issues raised in this appeal, I propose that each party pay their own costs. “Johanne Gauthier” J.A. “I agree Wyman W.Webb J.A.” “I agree Marianne Rivoalen J.A.” Annex 1 Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) Interpretation Définitions et champ d’application Definitions Définitions 2(1) In this Act, 2(1) Les définitions qui suivent s’appliquent à la présente loi. […] […] duties means any duties or taxes levied or imposed on imported goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament, but, for the purposes of subsection 3(1), paragraphs 59(3)(b) and 65(1)(b), sections 69 and 73 and subsections 74(1), 75(2) and 76(1), does not include taxes imposed under Part IX of the Excise Tax Act; (droits) droits Les droits ou taxes imposés, en vertu de la Loi de 2001 sur l’accise, de la Loi sur la taxe d’accise, de la Loi sur les mesures spéciales d’importation, du Tarif des douanes ou de toute autre loi fédérale, sur les marchandises importées. En sont exclues, pour l’application du paragraphe 3(1), des alinéas 59(3)b) et 65(1)b), des articles 69 et 73 et des paragraphes 74(1), 75(2) et 76(1), les taxes imposées en vertu de la partie IX de la Loi sur la taxe d’accise. (duties) […] […] Report of Goods Déclaration Report Déclaration Certain goods not subject to seizure Marchandises soustraites à la saisie-confiscation 12(7) Goods described in tariff item No.", - "current_to": "2019-08-07", + "text": "On this trip he accompanied Khattab on a scouting mission. He says that about twenty men went to the Amu Darya River bordering Tajikistan to see if there was anywhere they could cross without encountering a Russian ambush. They walked and rode donkeys rented from villagers. Almrei says he believed that Massoud and Rabbani had encouraged Khattab to enter into discussions or negotiations in Tajikistan but that they did not cross over on this occasion and returned to Kunduz. On a subsequent trip, he says they crossed over into Tajikistan on an inflatable boat and set up a camp on the north side of the river. It was not a military camp in any sense and there was no fighting while they were there. On a typical day they would fish with grenades or hunted rabbits with their AK-47’s. This was apparently a common practice in the region. He considered this period to be again, rebat or a form of garrison duty. He says they remained there two weeks and then he had to leave to return to Saudi Arabia to maintain his status there. The people he travelled with went on to Chechnya.\n\nWhile in the camp, Almrei says he talked about a variety of things with Khattab and came to know him well. He describes Khattab as devout and considerate to others and regards him to be a hero for his actions in Afghanistan and Chechnya. Almrei says he wasn’t interested in following Khattab to Chechnya; it “wasn’t in his blood”. He does believe in jihad but his experiences had been enough for him. He wanted to get on with his life.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-27", + "id": "fc-57473-100", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 229–231", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "9813.00.00 or 9814.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff 12(7) Ne peuvent être saisies à titre de confiscation en vertu de la présente loi, pour la seule raison qu’elles n’ont pas fait l’objet de la déclaration prévue au présent article, les marchandises, visées aux nos tarifaires 9813.00.00 ou 9814.00.00 de la liste des dispositions tarifaires de l’annexe du Tarif des douanes, pour lesquelles les conditions suivantes sont réunies : (a) that are in the actual possession of a person arriving in Canada, or that form part of his baggage, where the person and his baggage are being carried on board the same conveyance, a) elles sont en la possession effective ou parmi les bagages d’une personne se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada; (b) that are not charged with duties, and b) elles ne sont pas passibles de droits; (c) the importation of which is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any Act of Parliament other than this Act or the Customs Tariff may not be seized as forfeit under this Act by reason only that they were not reported under this section. c) leur importation n’est pas prohibée par le Tarif des douanes, ni prohibée, contrôlée ou réglementée sous le régime d’une loi fédérale autre que la présente loi ou le Tarif des douanes.", - "current_to": "2019-08-07", + "text": "Almrei acknowledged that the Khattab he knew could have changed in Chechnya but he doesn’t believe it. He suspects the Russians set the bombs that they blamed on the insurgents to justify invading Chechnya. But if it were true that Khattab was involved, Almrei would no longer have any respect for the man as that is not jihad but a crime. Going to Chechnya to participate in a legitimate defensive jihad was supported by the Muslim ummah in Saudi Arabia.\n\nBefore coming to Canada, Almrei says he ran a honey, incense and oud perfume business which he had started in high school. It was illegal for a non-Saudi citizen so he rented space in an established business and used a Saudi front man by the name of Mohamed al Blooshi. During his trips to Pakistan, he had realized how cheap the products were there. His last trip to Afghanistan was in 1996. He took some additional cash for the school’s expenses and returned with substantial quantities of honey and perfume for his business.\n\nAlmrei says that the Saudi’s began to crack down on businesses fronted by Saudis and his associate al Blooshi was being questioned. They were also aware of his travels to Pakistan and Afghanistan and that he had spoken out about political matters in Saudi Arabia. He sold the business in 1997 and began looking to move elsewhere. He applied for a Canadian visa in 1998 and was refused. He considered going to Australia also but was dissuaded when he learned that they put refugee claimants in a detention camp.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-28", + "id": "fc-57473-101", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 232–233", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "[…] […] Obligation to answer questions and present goods Obligations du déclarant 13 Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall 13 La personne qui déclare, dans le cadre de l’article 12, des marchandises à l’intérieur ou à l’extérieur du Canada, ou qu’un agent intercepte en vertu de l’article 99.1 doit : (a) answer truthfully any question asked by an officer with respect to the goods; and a) répondre véridiquement aux questions que lui pose l’agent sur les marchandises; (b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine. b) à la demande de l’agent, lui présenter les marchandises et les déballer, ainsi que décharger les moyens de transport et en ouvrir les parties, ouvrir ou défaire les colis et autres contenants que l’agent veut examiner. […] […] Presumption of importation Présomption d’importation 18 (1) For the purposes of this section, all goods reported under section 12 shall be deemed to have been imported. 18 (1) Pour l’application du présent article, toutes les marchandises déclarées conformément à l’article 12 sont réputées avoir été importées.", - "current_to": "2019-08-07", + "text": "In his 1998 application, Almrei said he would be visiting Hisham al Taha in Richmond, B.C. He didn’t know him but had asked Abu al Walid in Pakistan for help and had been given two names and phone numbers in Canada. One was for Ahmed al Kaysee in Toronto who didn’t answer when he called. Al Taha agreed when he was called. They were both Iraqi. Al Taha later did not recall having spoken to him when he was asked to assist in Almrei’s legal proceedings. Almrei said that this type of arrangement was common in his part of the world. He appreciates now, after seven and a half years in prison, that it is not common here.\n\nWhen that attempt failed, Almrei went to Jordan and bought a UAE passport and Kuwaiti driver’s license in the name of Yousuf Bilal (Exhibit R-28). This was a valid passport stolen or sold by the original holder and it came with a few entry stamps. In November-December 1998, he went to Bahrain to obtain a few additional documents to make the passport more credible. His friend al Blooshi obtained a multiple visit Canadian visa for him from the embassy at Abu Dhabi. When he called on the second occasion in January 1999, Al Kaysee agreed to meet him at the Toronto airport. Al Kaysee was then an Imam at a Toronto Mosque.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-29", + "id": "fc-57473-102", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 234–235", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Liability of person reporting goods short landed Solidarité du déclarant et de son mandant (2) Subject to subsections (3) and 20(2.1), any person who reports goods under section 12, and any person for whom that person acts as agent or employee while so reporting, are jointly and severally or solidarily liable for all duties levied on the goods unless one or the other of them proves, within the time that may be prescribed, that the duties have been paid or that the goods (2) En cas d’application de l’article 12, le déclarant et son mandant ou employeur sont, sous réserve des paragraphes (3) et 20(2.1), solidairement responsables de tous les droits imposés sur les marchandises, sauf si, dans le délai réglementaire, l’un d’eux établit le paiement des droits ou, à propos des marchandises, l’un des faits suivants : (a) were destroyed or lost prior to report or destroyed after report but prior to receipt in a place referred to in paragraph (c) or by a person referred to in paragraph (d); a) elles ont été soit détruites ou perdues avant la déclaration, soit détruites entre le moment de la déclaration et leur réception en un lieu visé à l’alinéa c) ou par la personne visée à l’alinéa d); (b) did not leave the place outside Canada from which they were to have been exported; b) elles n’ont pas quitté le lieu de l’extérieur du Canada d’où elles devaient être exportées; (c) have been received in a customs office, sufferance warehouse, bonded warehouse or duty free shop; c) elles ont été reçues dans un bureau de douane, un entrepôt d’attente, un entrepôt de stockage ou une boutique hors taxes; (d) have been received by a person who transports or causes to be transported within Canada goods in accordance with subsection 20(1); d) elles ont été reçues par une personne qui fait", - "current_to": "2019-08-07", + "text": "Almrei described some dealings with his Syrian/MB passport with the Jordanian authorities. He says that they confiscated the one that he had after he had travelled to Thailand in August 1998 and later it was returned to him by the MB. His Aunt worked in the MB office in Amman and arranged to have it stamped with a Syrian exit stamp. The passport he had used in his tourist visa application to Canada earlier that year was confiscated upon his return from a trip to Turkey. On that occasion he was questioned by Jordanian intelligence about his travels and was later asked by the MB to provide them with a report on the interview.\n\nAlmrei used the UAE passport to come to Canada via the UK. That document has a Thai visa dated December 2, 1998 valid for a month. Almrei said initially that it was not his and came with the passport when he bought it. On cross-examination, he said it had to have been the one he obtained. He says he tested the passport by getting a visa from the Thai embassy but did not use it, hence the absence of entry and exit stamps.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-30", + "id": "fc-57473-103", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 236–237", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "office de transitaire conformément au paragraphe 20(1); (e) have been exported; or e) elles ont été exportées; (f) have been released. f) elles ont été dédouanées. Rates of duties Taux des droits (3) The rates of duties payable on goods under subsection (2) shall be the rates applicable to the goods at the time they were reported under section 12. (3) Le taux des droits payables sur les marchandises conformément au paragraphe (2) est celui qui leur est applicable au moment où elles font l’objet de la déclaration prévue à l’article 12. Regulations Règlements (4) The Governor in Council may make regulations prescribing the circumstances in which such bonds or other security as may be prescribed may be required from any person who is or may become liable for the payment of duties under this section. (4) Le gouverneur en conseil peut, par règlement, fixer les cautions ou autres garanties susceptibles d’être souscrites par les personnes effectivement ou éventuellement redevables de droits au titre du présent article et déterminer les circonstances de la souscription. Federal Courts Rules, S.O.R./98-106 Joinder of claims Causes d’action multiples 101 (1) Subject to rule 302, a party to a proceeding may request relief against another party to the same proceeding in respect of more than one claim. 101 (1) Sous réserve de la règle 302, une partie à une instance peut faire une demande de réparation contre une autre partie à l’instance à l’égard de deux ou plusieurs causes d’action. Separate capacity Réparation à titre distinct (2) A party may request relief in a separate capacity in respect of different claims in a single proceeding. (2) Une partie peut demander réparation à titre distinct pour diverses causes d’action faisant l’objet d’une instance.", - "current_to": "2019-08-07", + "text": "He went to Thailand in August 1998 because of its reputation for human smuggling. He went there to see if he could find a way to get to Canada, as well as for a holiday. In Bangkok he went to a night club and approached two men speaking Arabic. One of them was a Palestinian named Ghaleb. He met him the next day to discuss the matter at a hotel on Sukhimveit Road. Ghaleb told him he could arrange to smuggle him to Canada for about $10,000. Almrei didn’t use his services as he did not trust him. But after he came to Canada, he stayed in touch with Ghaleb about bringing people from Jordan to Canada. He says they spoke about three times at the instigation of his interpreter in Toronto who had asked for this assistance. All of this, he says, he told the RCMP after his arrest.\n\nAlmrei completed a refugee application in January 1999 with Hassan Ahmed’s assistance. It contained errors including incorrect dates. He says he was confused by the western calendar. That application was misplaced by CIC. The second application dated April 11, 1999 was prepared by his lawyer and contains information about his Syrian/MB passport. He did not disclose his travel to Pakistan, Afghanistan or Tajikistan, on the advice of his interpreter, he says. At the refugee hearing he did not mention Afghanistan but said he had travelled Pakistan to buy honey. He said he had destroyed the UAE passport which was not true.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-31", + "id": "fc-57473-104", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 238–240", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Interest in all relief not essential Réparation ne visant pas toutes les parties (3) Not all parties to a proceeding need have an interest in all relief claimed in the proceeding. (3) Il n’est pas nécessaire que chacune des parties à l’instance soit visée par toutes les réparations demandées dans le cadre de celle-ci. […] […] Separate determination of claims and issues Instruction distincte des causes d’action 106 Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that 106 Lorsque l’audition de deux ou plusieurs causes d’action ou parties dans une même instance compliquerait indûment ou retarderait le déroulement de celle-ci ou porterait préjudice à une partie, la Cour peut ordonner : (a) claims against one or more parties be pursued separately; a) que les causes d’action contre une ou plusieurs parties soient poursuivies en tant qu’instances distinctes; (b) one or more claims be pursued separately; b) qu’une ou plusieurs causes d’action soient poursuivies en tant qu’instances distinctes; (c) a party be compensated for, or relieved from, attending any part of the proceeding in which the party does not have an interest; or c) qu’une indemnité soit versée à la partie qui doit assister à toute étape de l’instance dans laquelle elle n’a aucun intérêt, ou que la partie soit dispensée d’y assister; (d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party. d) qu’il soit sursis à l’instance engagée contre une partie à la condition que celle-ci soit liée par les conclusions tirées contre une autre partie. Customs Tariff, S.C. 1997, c.", - "current_to": "2019-08-07", + "text": "The UAE passport was seized during a search of his apartment in 2000. CIC officers were looking for one of his room mates, Yahya, who was not there. He could not speak English at the time. They asked him to produce ID and then to sit while they searched the premises. They opened his briefcase and found documents including the passport which they seized leaving a receipt. Almrei offered to bring the room mate to the CIC office when he returned, which he did the next day.\n\nAlmrei says that he was called by the interpreter, Agha in 2001 and asked for assistance in getting a passport for Almarabh so he could leave the country to visit his mother in Kuwait. Almrei had previously learned of a contact in Montreal, Mohamed, who could provide false passports. The interpreter called him on several occasions trying to get him to obtain such documents but never followed through with the money. Almrei’s theory is that the interpreter is a government informant who was trying to set him up.\n\nAlmrei’s business in Toronto was two or three blocks away from the copy shop operated by Almarabh’s uncle. He had seen Nabil at the shop but had not recognized him. When they spoke and he introduced himself as Abu Adnan, his kunya, Almrei recognized him as someone he had met in Kunduz in 1994. They both looked different. They had long beards and were skinny then. Both were beardless and considerably larger.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-32", + "id": "fc-57473-105", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 241–244", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "36 PART 1 PARTIE 1 Interpretation and General Définitions et dispositions générales Interpretation [EN BLANC] Definitions Définitions 2 (1) The definitions in this subsection apply in this Act. 2 (1) Les définitions qui suivent s’appliquent à la présente loi. […] […] tariff item means a description of goods in the List of Tariff Provisions and the rates of customs duty and the accompanying eight-digit number in that List and, if applicable, in the “F” Staging List. (numéro tarifaire) numéro tarifaire Dénomination de marchandises, figurant sur la liste des dispositions tarifaires, marquée d’un numéro à huit chiffres et les taux figurant sur cette liste et, le cas échéant, au tableau des échelonnements. (tariff item) […] […] Words and expressions in Act Termes de la Loi sur les douanes 4 Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection. 4 Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe. … […] Classification of goods in the List of Tariff Provisions Classement des marchandises dans la liste des dispositions tarifaires 10 (1) Subject to subsection (2), the classification of imported goods under a tariff item shall, unless otherwise provided, be determined in accordance with the General Rules for the Interpretation of the Harmonized System and the Canadian Rules set out in the schedule.", - "current_to": "2019-08-07", + "text": "Almrei agreed to arrange for a false passport. He called Mohamed, rented a car, took Nabil’s money and drove to Montreal where he met Mohammed on St. Catherine St. He gave half of the money then with the photo. Mohamed’s accent was Algerian. They met the next day to transfer the passport with the new photo, citizenship, driver’s license and SIN card. He paid $2000 and kept the balance of $2000 for himself.\n\nAlmarabh was detained after a failed attempt to be smuggled across the border at Niagara Falls on June 27, 2001. He had not attempted to use the false passport. He was charged under the Immigration Act and released on a $19,000 bond put up by his uncle Ahmad Shehab with a contribution from Almrei. He was then smuggled into the US on July 7, 2001.\n\nAlmrei admits that he also participated in a scheme with Ibrahim Ishak to obtain valid Ontario driver’s licenses for people who could not otherwise legally obtain them. An Ontario GI permit would be taken to Michigan and exchanged for a Michigan license. They would then use those to obtain Ontario licenses with full driving privileges. They charged $500 for this service.\n\nAlmrei and his friend bought the Eat-a-Pita restaurant in the Yorkville area but lost money and sold the business after about nine months. He hired Zenab Awaymer as a cook. She had no status in Canada and paid him $4000 to arrange a marriage of convenience with Ishak. Ishak later withdrew his sponsorship after becoming engaged to a Bosnian woman. Almrei says he repaid the money. Awaymer returned to Lebanon. Almrei claims that he has no knowledge of the documents that Ishak was carrying when he was stopped and searched at the Detroit airport in February 2000.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-33", + "id": "fc-57473-106", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 245–248", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "10 (1) Sous réserve du paragraphe (2), le classement des marchandises importées dans un numéro tarifaire est effectué, sauf indication contraire, en conformité avec les Règles générales pour l’interprétation du Système harmonisé et les Règles canadiennes énoncées à l’annexe. Classification of “within access commitment” goods Classement de marchandises « dans les limites de l’engagement d’accès » (2) Goods shall not be classified under a tariff item that contains the phrase “within access commitment” unless the goods are imported under the authority of a permit issued under section 8.3 of the Export and Import Permits Act and in compliance with the conditions of the permit. 2) Des marchandises ne peuvent être classées dans un numéro tarifaire comportant la mention « dans les limites de l’engagement d’accès » que dans le cas où leur importation procède d’une licence délivrée en vertu de l’article 8.3 de la Loi sur les licences d’exportation et d’importation et en respecte les conditions.", - "current_to": "2019-08-07", + "text": "Following 9/11, he says he became aware of the surveillance on him and became alarmed. He learned through news reports that the FBI was looking for Nabil Almarabh and knew that he would be connected through the false passport. His lawyer arranged for a meeting with CSIS. Almrei says that he was frightened. He comes from a region where he had heard terrible things about the intelligence authorities. In the result, he denied everything.\n\nFollowing his arrest, the RCMP interviewed him in jail about the passport he obtained for Almarabh and he agreed to talk to them on the understanding that it would not be used against him. No lawyer was present. He says they talked for about eight hours.\n\nAlmrei denies having been involved in an international forged document ring. He says that the only ones he was involved with were those he had described in his testimony. He says he never got anything from Ghaleb in Thailand; nothing more from the people in Jordan from whom he bought the UAE passport and that he had nothing to do with Ishak’s package of documents. He acknowledges that there was reason to be suspicious about what he was doing with passports but he never expected to be thrown in jail for it. He says that it was worth it in a sense as it gave him the opportunity to meet many people who have touched his life.\n\nOn cross-examination, Almrei explained that he had not disclosed his kunya, Abu al Hareth, to the immigration authorities as he does not consider it his name and does not use it in introductions. He was not asked by CSIS in October 2001 if he had a kunya. He did not withhold this information so that CSIS would have difficulty connecting him with his history. Most people in the community in Toronto had only known him as Abu al Hareth.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-34", + "id": "fc-57473-107", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 249–251", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "Customs Tariff – Schedule Section X: Pulp of Wood or of Other Fibrous Cellulosic Material; Recovered (Waste and Scrap) Paper or Paperboard; Paper and Paperboard and Articles Thereof Section X : Pâtes de bois ou d'autres matières fibreuses cellulosiques; Papier ou carton à recycler (déchets et rebuts); Papier et ses applications 49 PRINTED BOOKS, NEWSPAPERS, PICTURES AND OTHER PRODUCTS OF THE PRINTING INDUSTRY; MANUSCRIPTS, TYPESCRIPTS AND PLANS 49 PRODUITS DE L'ÉDITION, DE LA PRESSE OU DES AUTRES INDUSTRIES GRAPHIQUES; TEXTES MANUSCRITS OU DACTYLOGRAPHIÉS ET PLANS 4907.00.00 Unused postage, revenue or similar stamps of current or new issue in the country in which they have, or will have, a recognized face value; stamp-impressed paper; banknotes; cheque forms; stock, share or bond certificates and similar documents of title. 4907.00.00 Timbres-poste, timbres fiscaux et analogues, non oblitérés, ayant cours ou destinés à avoir cours dans le pays dans lequel ils ont, ou auront, une valeur faciale reconnue; papier timbré; billets de banque; chèques; titres d'actions ou d'obligations et titres similaires. Banknotes being legal tender: Billets de banque, ayant cours légal : 4907.00.00.12 Issued 4907.00.00.12 Émis […] […] Section XIV Chapter 71: Natural or Cultured Pearls, Precious or Semi-precious Stones, Precious Metals, Metals Clad with Precious Metal, and Articles Thereof; Imitation Jewellery; Coin Section XIV Chapitre 71 : Perles fines ou de culture, pierres gemmes ou similaires, métaux précieux, plaqués ou doublés de métaux précieux et ouvrages en ces matières; bijouterie de fantaisie; monnaies 7118 Coin 7118 Monnaies.", - "current_to": "2019-08-07", + "text": "Almrei was questioned closely on the passports he has held. Almrei says he had obtained three Syrian/MB passports. The one he received in 1990 required a Saudi stamp permitting exits for up to six months which could be renewed. He says that he lost that one after the first renewal and obtained a new one from the MB. That first passport is not in evidence. The second which he obtained in 1991, was taken by the Jordanians when he returned from Turkey in 1998 and he was given another by the MB. The third, which is in evidence, was issued in 1998 and was valid until May 2004. In the result, the passport which would document his travels from 1991 to 1998 is not in evidence.\n\nAlmrei said he was confused by the number of passports he was issued by the MB and may have had another one. He identified a Saudi driver’s license filed in the IRB proceedings (A-24) which refers to a Syrian ID issued in 1995. He agrees that is probably a Syrian passport but has no idea where it is. His explanation is that in travelling across the bridge from Damman to Bahrain for shopping or dinner required an entry and exit visa stamp. Passports would be filled up rapidly and replaced. The MB in Jordan was allowed by that government to print Syrian passports and those passports were accepted in Saudi Arabia.\n\nRegarding the UAE passport, Almrei says that he lied about destroying it in the IRB proceedings as he feared he would not be accepted as a refugee. If that happened he wanted to be able to use the passport again. When he was accepted, he forgot about it until it was found in his apartment. In his 2004 testimony before the Court, Almrei said he bought the passport with the Canadian visa already in it. He did not mention Al Blooshi’s role in obtaining it.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-35", + "id": "fc-57473-108", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 252–254", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "[…] […] 7118.90.00 Other 7118.90.00 Autres 7118.90.00.10 Gold coin 7118.90.00.10 Pièces de monnaie d'or 7118.90.00.91 Canadian coin 7118.90.00.91 Monnaie canadienne […] […] 7118.90.00.99 Other 7118.90.00.99 Autres Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, c. 17 Currency and monetary instruments Déclaration 12 (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. 12 (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur égale ou supérieure au montant réglementaire. Limitation Exception (2) A person or entity is not required to make a report under subsection (1) in respect of an activity if the prescribed conditions are met in respect of the person, entity or activity, and if the person or entity satisfies an officer that those conditions have been met. (2) Une personne ou une entité n’est pas tenue de faire une déclaration en vertu du paragraphe (1) à l’égard d’une importation ou d’une exportation si les conditions réglementaires sont réunies à l’égard de la personne, de l’entité, de l’importation ou de l’exportation et si la personne ou l’entité convainc un agent de ce fait. Sending reports to Centre Transmission au Centre (5) The Canada Border Services Agency shall send the reports they receive under subsection (1) to the Centre.", - "current_to": "2019-08-07", + "text": "Almrei acknowledged having had a Yemeni passport in the mid-90s. He had attempted to buy Yemeni citizenship in Saudi Arabia but destroyed the passport upon receipt as it came with someone else’s name and date of birth. At that stage he wanted citizenship anywhere and believed it could be bought in Yemen.\n\nSaudi intelligence had spoken to al Blooshi about his political opinions. Saudi Arabia was interested in people who had been to Afghanistan in the aftermath of the 1996 bombings in Khobar. They jailed thousands of Shiites from the eastern provinces suspected of cooperation with Hezbollah. They were also inquiring about people who had openly expressed opinions about the Royal Family. But he had to leave Saudi Arabia not for that but because of the Saudi law prohibiting non-Saudi’s from owning businesses. He was no longer in school and was not employed. He did not want to have to join the MB which was the only other option.\n\nAlmrei was taken back over his testimony about his travels in Afghanistan in detail on cross-examination. For the most part, his account held together in my view. He was uncertain on some dates and time-lines but that is not in itself surprising. On reflection, he said he thought his last trip to Pakistan was in 1995 and not 1996. He was there when the Egyptian Embassy was bombed in Islamabad, which was in November 1995. During his first trip to Kunduz, it was cold and snowy so that could have been early rather than late 1994. He didn’t care about the dates then and did not keep a diary. Now he is relying upon his high school transcript to determine the years. He thinks that he did two trips to Tajikistan in 1994 and a third in 1995.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-36", + "id": "fc-57473-109", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 255–256", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "It shall also create an electronic version of the information contained in each report, in the format specified by the Centre, and send it to the Centre by the electronic means specified by the Centre. (5) L’Agence des services frontaliers du Canada fait parvenir au Centre les déclarations recueillies en application du paragraphe (1) et établit, dans la forme prévue par le Centre, une version électronique des renseignements contenus dans chaque déclaration qu’elle transmet au Centre par les moyens électroniques prévus par celui-ci. Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 Minimum Value of Currency or Monetary Instruments Valeur minimale des espèces ou effets 2 (1) For the purposes of reporting the importation or exportation of currency or monetary instruments of a certain value under subsection 12(1) of the Act, the prescribed amount is $10,000. 2 (1) Pour l’application du paragraphe 12(1) de la Loi, les espèces ou effets dont l’importation ou l’exportation doit être déclarée doivent avoir une valeur égale ou supérieure à 10 000 $.", - "current_to": "2019-08-07", + "text": "Counsel for the Ministers questioned him closely on the reasons why he was allowed to stay at what he had characterized as Sayyaf’s “VIP” guest house in Pabbi. He explained that it was because of Sala’ud’din and that it was nothing more than a small house made of brick and mud, painted white. He recalls playing ping-pong with Sayyaf after a dinner but apart from that had little contact with him. When pressed about news articles citing crimes committed by Sayyaf’s men, he said he accepts that they may have done this but he never saw it and does not believe that Sayyaf would have allowed it. Almrei wondered why he was being asked to answer for Sayyaf’s actions. He has no respect for the mujahidin leaders who killed civilians.\n\nAlmrei freely admitted having lied to the Canadian consulate in his application for a visa in 1998, that he lied to the customs officer at the airport in January 1999, lied to the IRB and CSIS. He says he assumed that they knew that people lie in coming to Canada. After 9/11, he would have freely told CSIS about his travels had they told him they were aware. He spoke to the RCMP when they told him they knew about the Almarabh passport. But CSIS was not interested after the first certificate was upheld. Almrei says he is sorry for what he has done, not who he is. He acted on the advice of his interpreter who told him that his travels to Afghanistan could not be verified as there were no visas issued.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fca-419470-37", + "id": "fc-57473-110", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 257–259", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", + "part": "Federal Court", "division": "", - "text": "(2) The prescribed amount is in Canadian dollars or its equivalent in a foreign currency, based on (2) La valeur de 10 000 $ est exprimée en dollars canadiens ou en son équivalent en devises selon : (a) the official conversion rate of the Bank of Canada as published in the Bank of Canada’s Daily Memorandum of Exchange Rates that is in effect at the time of importation or exportation; or a) le taux de conversion officiel de la Banque du Canada publié dans son Bulletin quotidien des taux de change en vigueur à la date de l’importation ou de l’exportation; (b) if no official conversion rate is set out in that publication for that currency, the conversion rate that the person or entity would use for that currency in the normal course of business at the time of the importation or exportation. b) dans le cas où la devise ne figure pas dans ce bulletin, le taux de conversion que le déclarant utiliserait dans le cours normal de ses activités à cette date. FEDERAL COURT OF APPEAL", - "current_to": "2019-08-07", + "text": "Almrei contributed $2500 to Almarahb’s bail bond and was repaid after he was released. Almarahb called him later from the US and asked for other documents or the name of Almrei’s contact in Montreal. Almrei refused. He acknowledged having a reputation within the community as a person who could get false documents. Assumes that was in part due to Agha spreading the word around.\n\nHe met Ishak at a Toronto mosque in 1999 and worked with him at the airport on three occasions. Ishak Knew a man who was involved in a cleaning contract. The first and second jobs were to wash the exterior of aircraft in a hangar. The third night they cleaned the interior of aircraft in another hangar.\n\nIn 2004, Almrei said that he did not believe that Bin Laden was responsible for 9/11. At that time, he says, he had limited English and believed the conspiracy theories that were common in the Muslim world. In his culture, conspiracy theories are the first to be accepted. They blame others for everything done by Muslims. He couldn’t accept that a Muslim could do such an act. He has read a great deal since and has no doubt now. However, he still believes that Bin Laden had given a lot to the Afghan people. Prior to 9/11 Bin Laden to him was just another person supporting the mujahidin. Now he is disgusted by his actions.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-1", + "id": "fc-57473-111", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 1–3", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 260–262", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "This is an application for judicial review of a decision of an officer of Citizenship and Immigration Canada (the Officer) denying the Applicant’s application for a temporary resident visa and determining that the Applicant engaged in misrepresentation with the result, pursuant to subsection 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA), that he is inadmissible to Canada for a period of two years. The application is brought pursuant to subsection 72(1) of the IRPA. Background\n\nThe Applicant is a citizen of Mauritius. He was granted a study permit for the period December 24, 2006 to January 31, 2008. This was renewed for the period January 4, 2008 to September 27, 2008 and he was issued a work permit on April 4, 2008, also valid to September 27, 2008 which permitted him to work up to 20 hours a week during regular academic sessions and full time during scheduled breaks. The work permit is referred to by Citizenship and Immigration Canada (CIC) as an off-campus work permit (OCWP). His study permit was again renewed for the period September 15, 2008 to April 30, 2009 and an OCWP on the same terms was issued on October 15, 2008 also valid to April 30, 2009. A final study permit and OCWP were issued on April 24, 2009 valid to May 16, 2012.\n\nFrom January 2010 to December 2010, the Applicant attended the Northern Alberta Institute of Technology (NAIT) and successfully completed a full-time, one year Water and Waste Technician Program. While attending the NAIT, he held a part time practicum position at IVIS Inc., from May 2010 to September 2010, as permitted by the OCWP.", - "current_to": "2013-09-23", + "text": "On re-direct, Almrei said his reading and exposure to other influences has changed his view on many things. When he was in Afghanistan, he did not talk politics. He did not know who funded or controlled the guesthouses before he went there. No one spoke about Al Qaeda. He is confused about dates because he used the Islamic or Hijiric calendar until after he was arrested. It is not synchronized with the western calendar. He admits to blaming U.S. policy for 9/11 but did not mean that people deserved to die. In Toronto he knew no one who had been on jihad other than al Kaysee. The Expert Opinion Evidence:\n\nThe Ministers put forward one witness to be qualified as an expert, Dr. Martin Rudner. Initially, the respondent sought to have six witnesses qualified as experts. During the course of the proceedings, the respondent agreed that it would not be necessary to call two of them as the evidence which they would have offered was not a matter of controversy between the parties. In the result, the respondent tendered the opinion evidence of Mr. Thomas Quiggin, Dr. Brian Williams, Dr. Lisa Given and Sheikh Ahmed Kutty.\n\nIn determining whether to admit the opinion evidence of these five expert witnesses, I considered the criteria set out in R. v. Mohan, [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, which are (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. I had no difficulty concluding that each of the five witnesses satisfied these criteria, albeit with some limitations. Dr. Martin Rudner", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-2", + "id": "fc-57473-112", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 4–7", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", + "section": "", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 263–265", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Upon graduation, the Applicant commenced full time employment with IVIS Inc., as of December 20, 2010 and continuing to September 2012. He was no longer a student and did not obtain an alternate work permit until June 1, 2012.\n\nOn November 3, 2011, the Applicant was refused a temporary resident visa by the CIC office in Los Angeles.\n\nThe Applicant applied for, and on June 1, 2012 was issued, a work permit valid to June 1, 2014, permitting the Applicant to work at IVIS Inc.\n\nThe Applicant again applied for a temporary residency visa on October 11, 2012 at the CIC Seattle office. In that application, in reply to the question “Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country.” He responded “no” and did not disclose the November 3, 2011 temporary residency visa refusal in Los Angeles.", - "current_to": "2013-09-23", + "text": "Dr. Rudner holds Master’s Degrees in International Relations and Asian Economics and Politics from McGill University and the University of Oxford and a Ph.D. in Asian Studies from the Hebrew University of Jerusalem (1974). He is presently Distinguished Research Professor Emeritus of Carleton University. He was founding Director of the Canadian Centre of Security and Intelligence Studies and established the Center for Security and Defence Studies at Carleton.\n\nIn addition to his academic and research work, primarily focused on Southeast Asia, Dr. Rudner has organized and contributed to national and international conferences on intelligence and security issues and has consulted and lectured on security and counterterrorism issues to various government departments and agencies. For that work he has a top secret security clearance. He testified at the Air India inquiry and has served as an expert witness for the Attorney General in other proceedings.\n\nDr. Rudner knows some Arabic, but could not read a newspaper or carry on a conversation in that language. He is fluent in other Islamic languages, including those spoken in Indonesia and Malaysia, and speaks French and Hebrew. He has a depth of knowledge on political developments in the Muslim world, particularly Indonesia, based on many years of scholarship of the role of religion in international affairs, particularly the balance between state interests and religious objectives. In the course of his work in that field, he has gained a broad understanding of Al Qaeda and its affiliated extremist groups.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-3", + "id": "fc-57473-113", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 8–9", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 266–267", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "On October 31, 2012, the Officer sent the Applicant a “fairness letter” pointing out that the Applicant had failed to disclose the prior temporary residency visa refusal in Los Angeles. This stated, in part: It is difficult to escape the conclusion that your failure to disclose the previous refused TRV application in your application to this office was a deliberate attempt to conceal both the refusals themselves and the reasons for them. Immigration records in Canada together with the information and evidence submitted in your application indicate that you engaged in unauthorized full-time employment whilst you were the holder of an off-campus work permit. The record shows that you were requested to surrender the document but failed to comply. This was the primary reason for the refusal of your application by the Los Angeles office. Your failure to disclose the refusal of your application in that office, therefore, could have induced an error in the administration of the Act and regulations.\n\nThe letter also referred to subsection 40(1)(a) of the IRPA which states that a foreign national is inadmissible due to misrepresentation as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. The Applicant was given an opportunity to provide an explanation or documentary evidence to address this issue.", - "current_to": "2013-09-23", + "text": "Dr. Rudner was put forth by the Ministers to provide expert evidence on intelligence and counterterrorism dealing with Al Qaeda and its affiliated groups and movements around the world and on the misuse of identity documents, particularly passports, by terrorists and extremist groups in furtherance of their cross-border operations. He has written on that subject including a report for the Passport Office on terrorism and document misuse. His work in this area has been based on the empirical research of others.\n\nDr. Rudner provided the Court with insightful and helpful opinion evidence on the historical, cultural and theological context to the worldwide phenomenon of Islamic extremism and terrorist violence. In his testimony, he demonstrated a deep knowledge of the development of fundamentalist Islamic thought including the Hanbali/Wahhabi school prevalent in Saudi Arabia and Salafism, the practice of emulating the ways of the prophet and his followers. This was particularly helpful in understanding the motivations that drive contemporary Islamic extremists. Dr. Rudner was careful not to equate Wahhabism and Salafism with terrorism.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-4", + "id": "fc-57473-114", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 10–12", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 268–269", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In response, the Applicant submitted a Statutory Declaration in which he stated that a clerical error had been made by the immigration consultant who helped him with his application with the result that he had answered “no” to the question, “Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country?” when the correct answer was “yes”. He stated that this was not an intentional mistake, and, that he had never engaged in any unauthorized full-time employment while he was the holder of an OCWP and had never received any request from any immigration office to surrender any document. He attached all of the study and work permits he had received.\n\nThe Applicant also submitted a statutory declaration by Mr. Randy McDonald who identified himself as an administrative assistant at Canwrx Group Ltd., the immigration consultant that had acted as the Applicant’s representative in making the October 2012 temporary residency visa application. Mr. McDonald confirmed that he had made the clerical error described above.\n\nBy letter dated January 8, 2013, the Officer advised the Applicant that he did not meet the requirements for a temporary resident visa. Decision Under Review", - "current_to": "2013-09-23", + "text": "Dr. Rudner has an understanding of security intelligence matters related to terrorism derived from his broad reading in that field. However, he claims no expertise with respect to the Afghan conflict, has not visited the region and it has not been the focus of his research and publications. When it came to the history of the conflicts in the region, I preferred the evidence of Prof. Williams who has traveled and conducted research there. Dr. Rudner’s knowledge, for example, of the Afghan training camps stemmed primarily from publicly available literature, including the Al Qaeda training manual, and not from any direct experience in the region and acquaintance with the participants, as has Williams.\n\nThe Ministers sought to have Dr. Rudner counter the evidence which Mr. Quiggin had given in the detention review proceedings with regard to the misuse of identity documents. While Dr. Rudner has written on the subject, he has not conducted any specific research on that topic and has relied on secondary or tertiary sources of information, such as newspaper articles, of questionable reliability. In any event, I did not find his opinion evidence on the subject to be necessary as the fact that terrorists cross borders with false documents could be established through fact evidence. For example, the CSIS witness Robert Young gave several specific examples of known cases.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-5", + "id": "fc-57473-115", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 13", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 270–271", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In the January 8, 2013 letter, the Officer stated that he was not satisfied that the Applicant met the requirements of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-22 (the IRPA Regulations) and that the Officer was, therefore, refusing his application. [13] The basis for the refusal was that the Officer was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident as he had contravened the conditions of admission on a previous stay in Canada and as he had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA. Specifically, the Applicant had denied previously being refused a visa when, in fact, he had been refused by the CIC Los Angeles office. Further, that the Applicant had denied engaging in unauthorized employment whereas the record and his own application indicated otherwise. The letter also stated that the Applicant had no authority to work after he completed his studies at the NAIT. As it had been determined that the Applicant had engaged in misrepresentation pursuant to subsection 40(1)(a) of the IPRA, the Applicant was inadmissible to Canada for a period of two years. Applicable Law and Policy", - "current_to": "2013-09-23", + "text": "Dr. Rudner provided a helpful overview of the origins of modern Islamic extremism including the founding and spread of the Muslim Brotherhood and the writings of Syed Qutb and Abdullah Azzam. Qutb was an Egyptian member of the Brotherhood and influential author, executed in the 1960’s for offences against the state. Sheikh Abdullah Azzam was a displaced Palestinian with a PhD from Al Azhar University in Cairo. Funded by the Muslim World League and other donors, Azzam had set up the Mekhtab-al-Khidemat (MAK) Islamic services agency with offices in the Middle East and elsewhere, including Europe and the US, to facilitate arrangements for Arab volunteers to join the jihad in Afghanistan against the Soviets.\n\nAzzam mentored Bin Laden and other Afghan Arabs introducing them to Qutb’s pan-Islamic ideology centred on the ummah or Muslim nation. He was assassinated in 1989, allegedly by members of the Egyptian Islamic Jihad organization who had joined with Bin Laden and other supporters to form Al Qaeda. While the matter is not without controversy, Azzam is said to have disagreed with the direction taken by Al Qaeda, maintaining that a proper jihad was against combatants, and specifically against those who were directly oppressing Muslims in Muslim lands.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-6", + "id": "fc-57473-116", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 14", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 272–273", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The relevant provisions of the IRPA are as follows: PART 1 IMMIGRATION TO CANADA DIVISION 1 REQUIREMENTS AND SELECTION Requirements 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. […] Obligation — answer Truthfully 16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. […] Misrepresentation 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; […] (2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and […] PARTIE 1 IMMIGRATION AU CANADA SECTION 1 FORMALITÉS ET SÉLECTION Formalités 11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi. […] Obligation du Demandeur 16.", - "current_to": "2013-09-23", + "text": "Dr. Rudner disputed Thomas Quiggin’s and Dr. Williams’ assessments that Azzam was a moderate. He endorsed the journalist Peter Bergen’s view (Ex. A-, T-4) that Azzam’s dream was to restore the Khalifa (Caliphate); to unite Muslims throughout the world under one ruler. Dr. Rudner acknowledged that the severe Wahhabi traditions of the Arabian peninsula were alien to Afghans who generally followed the Hanafi school and Deobandi tradition. Azzam urged the Arabs to understand and be tolerant of Afghan practices they considered un-Islamic. His dispute with Al Qaeda was mainly over what was to come next. Azzam wanted to extend the jihad to the neighbouring countries of Central Asia dominated by the Russians. Bin Laden wanted to take the fight to the Arab heartland to overturn the apostate regimes. Bin Laden’s innovation was in interpreting the Koranic “verse of the sword” as justification for external jihad as Islamic self-defence. In Dr. Rudner’s view they shared the same values. The disagreement was over priorities. For Bin Laden, the “near enemy” were the apostate regimes that could only survive with the support of the west or the “far enemy” thus all were subject to attack.\n\nBin Laden returned to Saudi Arabia after the Soviets left Afghanistan in 1989. His initial reception was as a hero and celebrity for his role in supporting the jihad. As described by Peter Bergen (Ex. A-2), he was “lionized” for having left the typical Saudi millionaire’s comfortable life to join the jihad in Afghanistan. In Dr. Rudner’s view, as a teenager growing up in Saudi Arabia and interested in jihad at this time, Hassan Almrei would have known of Bin Laden’s reputation.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-7", + "id": "fc-57473-117", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 14", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 274–276", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "(1) L’auteur d’une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, […] Fausses déclarations 40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi; […] (2) Les dispositions suivantes s’appliquent au paragraphe (1): (a) l’interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la mesure de renvoi; […]", - "current_to": "2013-09-23", + "text": "Iraq’s invasion of Kuwait led to Bin Laden’s falling out with the Saudi government over the presence of American troops on Saudi territory. Bin Laden and his entourage moved to Sudan in 1991 at the invitation of the Islamist leader, Hassan Turabi. They left Sudan in 1996 after pressure was exerted by Saudi Arabia, the US and Egypt and returned to Afghanistan through Pakistan.\n\nDuring Bin Laden’s absence, the jihad in Afghanistan had continued against the communist government which remained in power with Soviet support. An alliance of Afghan mujahedin groups formed to defeat the government. These groups were largely linked by ethnic and tribal ties and included Pashtun militias under Gulbuddin Hekmatyar and Abdul Rasul Sayyaf, Tajiks from the Panjshir Valley led by Burhanuddin Rabbani and Ahmed Shah Massoud, Aburashid Dostum’s Uzbeks from Mazare Sharif, the Shiite Hazaras and others. While united in opposition to the government, they couldn’t agree on how power was to be shared when it was defeated.\n\nWhen President Najibullah’s support collapsed in April 1992, Massoud and Dostum outmanoeuvred Hekmatyar for control of Kabul and the central government. A government was installed, led by Rabbani. Civil war ensued. Much of the country was controlled by warlords and local militias. The Taliban, led by Mullah Omar and mainly Pashtun, emerged in 1994 from the south and proceeded to gather support and overcome the warlords. Bin Laden returned in May 1996. The Taliban took Kabul in September 1996. Bin Laden settled in Kandahar and took over or set up a network of training camps and guest houses. According to Dr. Rudner, there are estimates that about 70,000 mujahidin passed through these facilities from 1996 to 2001.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-8", + "id": "fc-57473-118", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 15", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 277–279", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The relevant provisions of the IRPA Regulations state: PART 9 TEMPORARY RESIDENTS DIVISION 1 TEMPORARY RESIDENT VISA 179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national (a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; (b) will leave Canada by the end of the period authorized for their stay under Division 2; (c) holds a passport or other document that they may use to enter the country that issued it or another country; (d) meets the requirements applicable to that class; (e) is not inadmissible; and (f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act. PARTIE 9 RÉSIDENTS TEMPORAIRES SECTION 1 VISA DE RÉSIDENT TEMPORAIRE 179. L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis: a) l’étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; c) il est titulaire d’un passeport ou autre document qui lui permet d’entrer dans le pays qui l’a délivré ou dans un autre pays; d) il se conforme aux exigences applicables à cette catégorie; e) il n’est pas interdit de territoire; f) s’il est tenu de se soumettre à une visite médicale en application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et (3).", - "current_to": "2013-09-23", + "text": "Dr. Rudner discussed the Islamic concept of Takfir wa al Hijra. This refers to removal of oneself from an apostate community (Takfir) and going into exile (wa al Hijra). In modern times this has been interpreted by extremists as authorizing emigration or flight to take refuge in western countries to reform, mobilize and prepare for a return to their homelands. Going to the west was similar to what the prophet had done in going to Mecca, moving from dār al-harb (the world of war) to dār al-islām (the abode of peace and freedom).\n\nIn Dr. Rudner’s view, Sunni extremists adopted a doctrine of pretence and dissimulation (kitman and taquiya) to deceive western authorities, including the courts, citing a manual for mujahidin entitled “Encyclopaedia of the Jihad” (Ex. A-1, T-5). He referred to the work of the Syrian Al Qaeda theorist, Abu Musab al Suri, who promoted a model of distributed leadership.\n\nCommenting on the debate among experts on this topic (Sageman/Hoffman articles, Ex.A-5), Dr. Rudner acknowledged that a number of high level Al Qaeda activists have been killed or captured but he doubts that it has weakened them. In his view, Al Qaeda is an “action oriented, learning organization”. It doesn’t matter what their numbers are as they have created the distributed organization planned by Al Suri, the strategist. On cross-examination, he agreed that the weight of opinion is that Al Qaeda is now both centralized and diffused in that there are experts who credibly believe that it is less dangerous today than it was in 2001.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-9", + "id": "fc-57473-119", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 16–17", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 280–282", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "CIC has also produced a policy document entitled ENF 2 – Evaluating Inadmissibility (ENF 2) which is intended to assist visa offices in assessing misrepresentation. While such guidelines or operational manuals do not have the force of law, they have been recognized by this Court as valuable guidelines to immigration officers in carrying out their duties (Canada (Minister of Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438 at para 46; Baker v Canada (Minister of Citizenship and Immigration), [1991] 2 SCR 817 [Baker]; Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at para 85).\n\nENF 2 states that the purpose of the misrepresentation provisions is to ensure that applicants provide complete, honest and truthful information in every manner when applying for entry into Canada (section 9.1) and that persons who misrepresent or withhold material facts, either directly or indirectly, relating to a relevant matter that induces or could induce an error in the administration of the Act are inadmissible to Canada pursuant to subsection 40(1)(a) of the IRPA. Misrepresentation and withholding are defined as direct and indirect misrepresentation (section 9.2). The document also describes the principles applicable to relevancy as well as materiality and provides examples of these (section 9.4). It also addresses errors in the administration of the IRPA (section 9.5). Issues", - "current_to": "2013-09-23", + "text": "In his view, Hassan Almrei would have been an attractive recruit for al Qaeda because of his status as a veteran of the Afghan jihad and contacts with both Sayyaf and Khattab. His knowledge of how to obtain legitimate or forged travel documents would have been a useful skill set for a terrorist organization. He noted that Thailand has a reputation as a world centre for fraudulent passports and that Saudi Arabia was also known for the production of good quality false passports until the government cracked down in 2007.\n\nDr. Rudner did not think that Almrei’s account of obtaining funds from the Al Haramain Islamic Foundation for an Islamic school in Afghanistan was plausible. While Al Haramain is a large organization with its own accountability mechanisms, in his opinion, people who approached Al Haramain for funding would be couriers between the requesting agency and the organization. This would require validation and trustworthiness beyond what Almrei had described. In his view, it was more plausible that Almrei had couriered money to ibn Khattab for the jihad in Tajikistan and later in Chechnya. Al Haramain created a Foundation for Chechnya Fund to support the Chechen guerrillas (Ex. A-1, T-17).\n\nOn cross-examination, Dr. Rudner acknowledged that the Saudi branch of the Al Haramain foundation was not included in the UN list of financial institutions (Ex. R-2) that funded terrorism. He agreed that financial transfers in the region would have to be in currency due to lack of banking systems. He has no personal knowledge of the Foundation’s practices and could only speculate as to what they would require to validate a funding request.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-10", + "id": "fc-57473-120", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 18–20", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 283–285", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "I would frame the issue in this matter as being whether it was reasonable for the Officer to conclude that there was a material misrepresentation. Standard of Review [18] The majority of the Supreme Court has held that “[a]n exhaustive analysis is not required in every case to determine the proper standard of review.” Courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particular category of question (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paras 57 and 62 [Dunsmuir]; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 53 [Khosa]).\n\nThis Court has previously held that the standard of review to be applied when determining whether an immigration officer made a reviewable error in concluding that an applicant made a material misrepresentation pursuant to subsection 40(1)(a) of the IRPA is reasonableness. Misrepresentation is an issue of mixed fact and law and is therefore reviewable on the reasonableness standard (Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 12 [Oloumi]; Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788 at para 14).\n\nWhen reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility of the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir, above, at para 47; Khosa, above at para 59). Positions of the Parties The Applicant", - "current_to": "2013-09-23", + "text": "Dr. Rudner was cross-examined closely on the accuracy of sources he had referenced in his report, including a Washington Times article dated August 1, 2008 (Ex. R-3), an article on the use of deception by Raymond Ibrahim (Ex. R-4) and the Encyclopaedia of the Afghani Jihad (Ex. A-7). The content of the Washington Times article did not support the statement for which it was used as a reference. There is no explicit reference in the Encyclopaedia to support the statement that it encourages Al Qaeda members to deceive the court. Dr. Rudner acknowledged that Mr. Ibrahim’s perspective may be biased.\n\nThe witness was taken to an excerpt from Rohan Gunaratna’s “Inside Al Qaeda” (Ex. R-6) which quotes Abdullah Azzam as being against the killing of innocents. After Azzam was killed an extremist faction of MAK joined Bin Laden but the mujahidin who had been close to Azzam constantly quarrelled with them. To seize control, Bin Laden had to rely on his Egyptian allies. Gunaratna says the Egyptians killed Azzam and that it was at least tacitly condoned by Bin Laden. By acquiescing in Azzam’s murder, Osama freed the organization from being constrained by its founder’s guiding principles and rules.\n\nOn the classical doctrine of jihad which partitioned the world into Dar al-Islam and Dar al-Harb, Dr. Rudner agreed that since 9/11 there have been references to other worlds; e.g., Dar al Haq or house of truce. People in the Islamic Diaspora to western countries are arguing this perspective but not those in the Islamic countries. Taken to some of his writings in 2003-2004 (Ex. R-8, R-9), he agreed that subsequent events and information have evolved and changed the views he expressed at that time.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-11", + "id": "fc-57473-121", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 21–24", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 286–287", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The Applicant’s position is that there was no misrepresentation but, even if there was, it was not material.\n\nThe Applicant submits that he brought the error to the attention of the immigration consultant who was assisting him and that he believed that the error would be corrected before the consultant submitted the application. He was not dishonest and did not knowingly misrepresent his immigration history. He reasonably and honestly believed at the time the application was made that he was not withholding material information. In this regard he relies on Medel v Canada, [1990] FCJ No 318 (CA)(QL) [Medel] and distinguishes Oloumi, above, and Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315 [Haque] on their facts. He also submits that he responded to the fairness letter in an effort to explain the error and provided copies of his study visas and his work permits.\n\nFurther, the Applicant submits that only if information affects the process undertaken or the final decision will it be considered to be material (ENF 2; Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 166 [Ali]). Here the answer to the question of whether he had previously been denied a visa was not material to the process because the application was complete and could be processed regardless of the answer provided. Nor did his answer put into doubt other important information about himself. The Respondent\n\nThe Respondent submits that the Applicant’s failure to disclose the previous temporary resident visa application constituted a material misrepresentation.", - "current_to": "2013-09-23", + "text": "When taken to a text by Reza Aslan, “No God but God” (Ex. R-7), which asserts that there is an outright prohibition in the Koran of all but strictly defensive wars, Dr. Rudner said he sees this as an apologia. He accepts that there is a broader view of jihad in the Muslim world that is of a greater or spiritual jihad. “Islamism” in his view encompasses those who believe that action should be taken now to expand Dar al-Islam. Militant Islamists want to do it with force. On re-direct, he included Abdullah Azzam in that perspective and cited statements from Azzam’s work “Join the Caravan” (Ex. A-3, T-2, pp.132-133): “… jihad is obligatory continuously until every piece of land that was once Islamic is regained.” “…jihad when mentioned on its own only means combat with weapons…” “the saying, “we have returned from the ‘lesser jihad’ (battle) to the greater jihad” is a false, fabricated hadith…” Mr. Thomas Quiggin\n\nMr. Quiggin was qualified as an expert witness when he testified during the detention review proceedings for reasons which are set out in that decision (Re Almrei, 2009 FC 3, [2009] F.C.J. No. 1). He was permitted then to give opinion evidence on the structure and organization and evolution of the global jihadi movement. In this hearing, the respondent also sought to have him qualified as an expert in intelligence collection and reliability. Mr. Quiggin acknowledged that he is not an expert in the Koran, Islamic history and Islamic jurisprudence. Nor has he ever recruited or managed a human source other than in the informal sense of connecting or networking to collect information.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-12", + "id": "fc-57473-122", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 25–26", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 288–290", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The Respondent refers to the requirements of the IRPA, the IRPA Regulations as well as ENF 2 and concludes that the Officer properly applied these provisions which required the Applicant to provide complete and truthful information. The failure to disclose the previous temporary residency visa refusal was a relevant matter to weigh when considering the Applicant’s subsequent application and could have induced an error in the administration of the IRPA. Accordingly, the failure to disclose this matter renders the Applicant inadmissible by virtue of section 40 of the IRPA and the Decision is therefore, reasonable. The Respondent relies on Oloumi and Haque, both above, in support of its position.\n\nThe Respondent submits that the Applicant was aware of the error in his application and, while he may have brought this to the attention of his immigration consultant, he himself signed and declared the application to contain truthful answers. Accordingly, this error was not beyond his control, he was alive to it and could and should have reviewed the application prior to signing it to ensure that the error had been rectified and that the application was accurate. Therefore, the Applicant cannot now claim that he honestly and reasonably believed in the veracity of the answers (Oloumi, above, Khorasgani v Canada (Minister of Citizenship and Immigration), 2012 FC 1177 at paras 14-18). The Respondent submits that the Applicant’s reliance on Medel, above is misplaced in the circumstances of this case.", - "current_to": "2013-09-23", + "text": "The Ministers dispute Mr. Quiggin’s expertise in the reliability of national security intelligence on the grounds that neither his educational nor his professional credentials nor his employment history supports a conclusion that he possesses sufficient expertise in this area. His primary background is in military intelligence.\n\nAs I stated, at paragraph 194 of the 2009 FC 3 decision, there are no specific credentials that potential experts must have in order to be admitted as experts. Opinion evidence may be given by a witness “who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”: Mohan, above, at para. 27. “The only requirement for the admission of expert opinion is that the expert witness possesses special knowledge and experience going beyond that of the trier of fact”: R. v. Marquard, [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, at para. 35 quoting from R. v. Beland, [1987] 2 S.C.R. 398, [1987] S.C.J. No. 60, at p. 415.\n\nI continue to be satisfied that due to his work history and studies, outlined at paragraphs 187 to 192 of the January 2009 decision, Mr. Quiggin possesses special knowledge and experience going beyond that of the Court and that his opinion evidence assists the Court. In my view, that special knowledge and experience extends beyond the fairly narrow scope on which he was qualified for the detention review proceedings and includes the field of security intelligence. While he is not a career intelligence officer, he has been employed in that area by the Canadian military and several government departments, including the Privy Council Office, and has studied and written on the subject of assessing the reliability of raw intelligence.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-13", + "id": "fc-57473-123", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 27", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 291–293", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Further, in response to the fairness letter, the Applicant provided a statutory declaration stating that he had never engaged in any unauthorized full time employment while a holder of an OCWP and that he had never received a request from an immigration officer to surrender his OCWP. The Officer examined the file and determined that this contradicted the Applicant’s own application, the CIC record and other evidence. Accordingly, it was open for the Officer to conclude that the Applicant had continued to be dishonest. This indicated a pattern of providing untruthful information in breach of the Applicant’s statutory duty of candour and therefore justified the Officer’s decision. Analysis", - "current_to": "2013-09-23", + "text": "In addition to his qualifications reviewed in the previous decision, Mr. Quiggin has recently taught a course on strategic intelligence analysis at the Canadian Centre for Intelligence and Security Studies at Carleton University and has undertaken a study of terrorist groups in 70 countries for the United States Department of State. I found his opinion evidence on intelligence collection and reliability and jihadi movements to be helpful and had no qualms in concluding that the proffered evidence satisfies the Mohan criteria.\n\nMr. Quiggin was referred to the respondent’s counsel for consultation by the US military defence counsel in the Omar Khadr matter. He had delivered a lecture to Guantánamo defence counsel on intelligence procedures. Mr. Quiggin reviewed the February 2008 public summary and became concerned about several questions: the absence of references to primary sources; a lack of information about where Mr. Almrei would fit in the larger scheme of global terrorism; and the irrelevance of unconnected references to other cases. He says that he would not have agreed to testify had the government’s allegations in the summary appeared reasonable.\n\nQuiggin met Almrei before agreeing to testify. He says that he wanted to meet with the respondent to satisfy himself after reading the Crown’s case. They talked for about four hours. As a result, he doesn’t think he espouses the Al Qaeda ideology or that he is a danger to Canada. Almrei shares views which are critical of American policy and are widely held in the Arab street and elsewhere. This does not equate in Quiggin’s view with support for Al Qaeda.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-14", + "id": "fc-57473-124", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 28", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 294–295", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In Oloumi, above, Justice Tremblay-Lamer describes general principles arising from this Court’s treatment of section 40 of the IRPA which are summarized below together with other such principles arising from the jurisprudence: - Section 40 is to be given a broad interpretation in order to promote its underlying purpose (Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at para 25 [Khan]); - Section 40 is broadly worded to encompasses misrepresentations even if made by another party, including an immigration consultant, without the knowledge of the applicant (Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35 [Jiang]; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paras 55-56 [Wang]); - The exception to this rule is narrow and applies only to truly extraordinary circumstances where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the misrepresentation was beyond the applicant’s control (Medel, above); - The objective of section 40 is to deter misrepresentation and maintain the integrity of the immigration process.", - "current_to": "2013-09-23", + "text": "Opinions such as this go to the ultimate issue and it falls to the Court and not to the expert to make these determinations: Mohan, above at paragraph 24. Nonetheless, I thought it was useful to hear Mr. Quiggin's views on these matters as no one within the government has attempted to interview Mr. Almrei in recent years to determine whether he supports the Bin Laden ideology.\n\nThe witness freely acknowledged that he is not an academic scholar and that his writings have appeared primarily in periodicals aimed at practitioners and a more general readership. He says he respects the role of academics, attends their conferences and finds their tools of analysis useful. But in his view, real world experience such as attending Muslim events, as he has done, is also valuable. From his perspective, there is reason to be optimistic about the nature of reform in Islam. He agrees with Dr. Rudner that there is a fundamentalist movement within Islam to return to the traditions of the Prophet. But, he believes there is also a growing effort among many Muslims to interpret Islam in a more modern and moderate way.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-15", + "id": "fc-57473-125", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 28", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 296–297", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "To accomplish this, the onus is placed on the applicant to ensure the completeness and accuracy of their application (Jiang, above, at para 35;Wang, above, at paras 55-56); - An applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada (Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at para 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15); - As the applicant is responsible for the content of an application which they sign, the applicant’s belief that he or she was not misrepresenting a material fact is not reasonable where they fail to review their application and ensure the completeness and veracity of the document before signing it (Haque, above, at para 16; Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450 at para 31 [Cao]); - In determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose (Oloumi, above, at para 22); - A misrepresentation need not be decisive or determinative. It is material if it is important enough to affect the process (Oloumi, above, at para 25); - An applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application. The materiality analysis is not limited to a particular point in time in the processing of the application. (Haque, above, at paras 12 and 17; Khan, above, at paras 25, 27 and 29; Shahin v Canada (Minister of Citizenship and Immigration), 2012 FC 423 at para 29 [Shahin]);", - "current_to": "2013-09-23", + "text": "Mr. Quiggin does not profess to be an expert on the Koran but has read widely and consulted others on how Koranic concepts related to the extremist ideology espoused by Bin Laden. This evidence fell within the outer boundaries of what I considered to be his expertise. In his understanding, defensive jihad is clearly set out within the Koran as the obligation to defend a Muslim majority territory. Offensive jihad, as he understands it, would be haram, or forbidden. Mr. Quiggin acknowledges that extremist scholars and Al Qaeda justify aggressive jihad but he believes that most scholars do not support it. The notion of hijra or migration has also been distorted by Al Qaeda to support calls to jihad in foreign countries. Salafism, or the return to the practices and lifestyle of the first generations to follow the prophet, is also being used inappropriately. As is the concept of shahid or martyrdom in the context of suicide bombings. This is justified only by extreme ideologues. The mainstream view is that it is not permitted in Islam.\n\nTakfir or the concept of declaring someone an infidel or apostate has been adopted by Al Qaeda to justify killing anyone who doesn’t agree with them including Muslims living in infidel lands. Devout Muslims are offended by this use of the principle; that Al Qaeda figures without religious credentials would declare someone else takfir. While counterintuitive, Quiggin considers that the lack of religious knowledge is more of an indicator of vulnerability to extremism among Muslims. High practicing individuals, in his view, are more likely to be resistant to such pressures.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-16", + "id": "fc-57473-126", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 29–30", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 298–300", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Here, the Applicant submits that he had no knowledge of the misrepresentation which was caused by his immigration consultant’s failure to correct a clerical error. The Applicants submits that he instructed the consultant to change the answer of “no” to “yes” in response to the question “Have you ever been refused any kind of visa, admission or been ordered to leave Canada or another country?” However, that the consultant failed to do so before submitting the application.\n\nAs noted above, subsection 40(1)(a) is broadly worded as to include misrepresentations even if made by another party without the knowledge of the applicant, the general rule being that a misrepresentation can occur without the applicant’s knowledge (Jiang, above, at para 35; Cao; above, at para 31; Haque, above, at para 15;Wang, above, at paras 55-56; Shahin, above, at para 26).", - "current_to": "2013-09-23", + "text": "On cross-examination, the witness was taken back over this ground in detail. He does not dispute that extremists such as Bin Laden and al Zawahiri may be pious or devout Muslims but he considers that extremism, in general, does not equate with a deep religious knowledge. In his view, militants may speak with a religious voice but are predominantly secular and motivated by political considerations.\n\nIn their closing submissions, the Ministers have argued that Mr. Quiggin erred in his understanding of some Islamic terms such as hijra. In the Koran, this refers to the Prophet’s move to Medina. Quiggin spells it differently but defines it correctly as being used in the modern sense to refer to “migration”. The transliteration of Arabic terms to English allows for a considerable variation in spellings. In any event, I have put little weight on this or other differences between the witnesses on terminology. Aside from Sheik Kutty and Hassan Almrei himself, none of the others are native Arabic speakers and all rely on English translations.\n\nMr. Quiggin observed that there is a problem of access to reliable information in the study of jihadism and a risk of state actors exaggerating the threat for their own purposes. He discussed the growth of the “intelligence industry”; i.e., private contractors producing analysis for profit and creating websites to feed the “terror industry”.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-17", + "id": "fc-57473-127", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 31", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 301–303", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "While an exception to this principle arises where an applicant can show that he or she honestly and reasonably believed that they were not withholding material information (Medel, above), this exception is narrow. As the court stated in Oloumi, above: [35] Despite being frequently cited, the “exception” referred to in this passage has received limited application. Its originating case, Medel, above, involved an unusual set of facts: the applicant was being sponsored by her husband, but unbeknownst to her the husband withdrew his sponsorship. Canadian officials then misled the applicant by asking her to return the visa because they claimed it contained an error. They implied it would be returned to her, corrected. The applicant had English-speaking relatives inspect the visa and, after they assured her that nothing was wrong with it, she used it to enter Canada. The Immigration Appeal Board found her to be a person described in section 27(1)(e) of the former Immigration Act, 1976, SC 1976-77, c 52 [now RSC 1985, c I-2)], i.e. that she had been “granted landing… by reason of any fraudulent or improper means”. This finding was set aside by the Federal Court of Appeal because the applicant had “reasonably believed” that she was not withholding information relevant to her admission. [36] When considered within its factual context, therefore, the exception in Medel is relatively narrow. As Justice MacKay noted while distinguishing the case before him in Mohammed v Canada (Minister of Citizenship & Immigration), 1997 CanLII 5084 (FC), [1997] 3 FC 299: 41 The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware.", - "current_to": "2013-09-23", + "text": "One example of this in the government reference documents are a series of reports attributed to an organization called “ERRI” which produced a “Daily Intelligence Report”. This, as it turned out when the Court asked for an explanation, was a website created by a group of American paramedics and other first responders in 1990 which later was turned into a news aggregator service. In other words, it picked up and repeated news reports from other services. There is no assurance that this information is reliable.\n\nIn Mr. Quiggin’s view, intelligence is simply processed knowledge whether it consists of classified or unclassified information. The purpose of intelligence is to provide warning and understanding. Concerns about the reliability of intelligence can arise from many different issues: fixed mindsets, cognitive bias, stove-piping, deception and disinformation, transliteration and translation problems, cultural or contextual differences.\n\nMr. Quiggin provided examples of how these concerns may cause problems. Of particular relevance were his comments about human source information. This information is highly valued by the intelligence community but comes with high risks. The personal backgrounds of such sources may be questionable and there is always the risk of embellishment where the source provides information he or she thinks the handler wants to hear. This is particularly the case where the source has become a directed agent. The fact that a source may be generally reliable does not mean that they are reliable every time or the time that is important.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-18", + "id": "fc-57473-128", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 31–32", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 304–306", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute “subjective unawareness” of the material information as contemplated in Medel. Furthermore, I emphasize that a determinative factor in the Medel case was that the applicant had reasonably believed that she was not withholding information from Canadian authorities. In contrast, in the case before this Court the applicants did not act reasonably—the principal applicant failed to review his application to ensure its accuracy.\n\nIn Haque, above, the applicants therein similarly argued that the misrepresentations were not intentional and that it was their consultant who erred in filling out the application. Justice Mosley rejected this argument and stated the following: [15] […] Nonetheless, he signed the application and so cannot be absolved of his personal duty to ensure the information he provided was true and complete. This was expressed succinctly by Justice Robert Mainville at para 31 of Cao, supra: The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that.", - "current_to": "2013-09-23", + "text": "On cross-examination, the witness gave the example of a human source known as “curve-ball” who was relied on by the US government in the lead up to the invasion of Iraq. The information provided by that source was highly valued but has since been almost entirely discredited.\n\nMr. Quiggin also pointed to the fact that intelligence information does not age well. As a general rule, information that is six months old should be verified. Information that is believed to be credible at one time because of the source may prove to be inaccurate later. It may have been fair to rely on it at the outset but such reliance would be invalid later if additional and contradictory information is available. This was, in my view, a telling observation with respect to much of the intelligence relied upon by the government in this case.\n\nThe witness discussed reliability indicators and a methodology used by the Canadian military to assess intelligence. He reviewed what were, in Mr. Quiggin’s view, significant problems with the reliability of some of the open sources used in this case. These raised issues to him of accuracy and timeliness. Events described were subsequently determined not to have happened. The reports contain evasive words such as “suspected”, “said to have”, “according to”, “links to” which indicate that the information has not been substantiated. His concern was that there was no indication of a strenuous form of information checking by either the CSIS analysts who included this information in the SIR and the public summary or their supervisors.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-19", + "id": "fc-57473-129", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 33", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 307–308", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The present case is also factually very similar to Diwalpitiye v Canada (Minister of Citizenship and Immigration), 2012 FC 885 [Diwalpitiye]. The applicant therein indicated on his application form that he had never applied for, or been refused, immigration status in Canada. When the officer raised this as a concern in a fairness letter, the applicant responded by explaining that he had previously applied for a temporary resident visa, which was refused, but a subsequent application was successful. While he admitted this error in completing the application form, he requested that his application be processed because the error was merely an oversight. Justice Rennie found that the applicant had not persuaded the Court that it was unreasonable for the officer to find this to be a material misrepresentation.", - "current_to": "2013-09-23", + "text": "The witness came back to this on redirect. He stated that he was surprised to learn that the summary had been written seven years into the case. He could have understood and accepted the problems with it if it had been written at the outset. There was great pressure on intelligence services at that time, the indicators were weak, experts were not available and it was difficult to find references to substantiate the information. But seven years later, the selective use of misleading information is inexplicable, in his view.\n\nAn example of this was the use of a reference to a newspaper account of Lord Carlisle’s report on the operation of the UK anti-terrorism legislation (T-109) rather than the primary source, the report itself. The headline and body of the newspaper article were misleading. In Quiggin’s view, the report itself was not used in the public summary because it did not support the proposition for which it was cited while the misleading news report did.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-20", + "id": "fc-57473-130", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 34–36", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 309–310", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In my view, the Applicant in this case clearly made a misrepresentation by failing to disclose the prior CIC Los Angeles refusal to issue a temporary residency visa in his October 2012 application. He was aware of the error in his application and was responsible for ensuring that, when submitted, his application was accurate and truthful. However, he failed to review the application before it was submitted. Further, the fact of the prior refusal and of the identified clerical error in his application and whether or not it had been corrected was information that was within his control. The Applicant therefore failed to demonstrate that he honestly and reasonably believed that he was not withholding potentially material information. This situation does not, therefore, fall within the narrow exception found in Medel, above. It was reasonable for the Officer to conclude that the Applicant had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA and had misrepresented that fact.\n\nThis leaves only the question of whether the misrepresentation was material.\n\nSubsection 40(1)(a) of the IRPA states that a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. ENF 2 gives as an example of a situation constituting misrepresentation, one where an applicant fails to disclose that they recently applied for a visa to Canada.", - "current_to": "2013-09-23", + "text": "Quiggin disputes the characterization of Ibn Khattab in the public summary as being a member of the Bin Laden network. He is aware of the controversy over this amongst historians and of the information that Khattab had met Bin Laden during the anti-Soviet jihad. His understanding is that Khattab was a Bedouin from the Saudi Arabia/Jordan border area. His mother was Circassian, i.e., from the north Caucasus. Writings about him are largely retrospective. His brother has been quoted as saying Khattab had a deep hated of the Russians, stemming from the oppression of his mother’s people. He was a late-comer to the Afghan jihad but participated in the fighting at the same time as Bin Laden. Khattab stayed in Afghanistan after the departure of the Soviets for the on-going civil war at the time when Bin Laden had gone back to Saudi Arabia and was concerned with the Kuwaiti invasion. Khattab participated in the Tajik civil war which involved a coalition of liberal and fundamental Islamists against government forces from the north supported by the Russians.\n\nThere are two points of view about Ibn Khattab, according to the witness. One which says that he subscribed to global jihad. The other says that he went to Chechnya to kill Russians because of his personal history and interests. The Chechen insurgents were fighting their traditional enemies, the Russians. They did not change their target after Khattab became involved and allied himself with their leader Basayef. That is, they did not then join the global jihad against the West. The Chechens were grateful for support but would not submit themselves to Khattab's command. Moreover, while Bin Laden may have had an interest in the Chechen jihad, it could not be said that the Chechens had a strong interest in Al Qaeda.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-21", + "id": "fc-57473-131", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 37–38", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 311–313", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "As noted above, in determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose. To be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The wording of section 40 confirms that a misrepresentation does not actually have to induce an error, it is enough that it could do so (IRPA, subsection 40(1)(a); Oloumi, above, at paras 22 and 25; Haque, above, at para 11; Mai v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 101 at para 18; Nazim v Canada (Minister of Citizenship and Immigration), 2009 FC 471)).\n\nIn Haque, above, the applicant failed to disclose that he had formerly lived and studied in the United States and omitted or misrepresented details with respect to his place of residence, education and employment history. The deciding officer discovered the omission upon a review of CIC’s records. This Court held that the withheld information was material to the application as, without it, a visa could have been issued to the applicant without the required police and conduct certificates from the United States, thereby precluding a necessary investigation and inducing an error in the administration of the IRPA.", - "current_to": "2013-09-23", + "text": "Regarding the kidnapping of civilians employed by non-governmental organizations in Chechnya, an allegation against Khattab, in Quiggin’s view they may have been regarded as legitimate targets if they were perceived to be assisting the enemy. If Khattab was involved in that, it would make him a “bad guy” but not necessarily a member of Al Qaeda. In Quiggin’s view, the claim that Khattab was responsible for terrorist bombings against Russian civilians is typical Russian disinformation. Terrorist bombings were not Khattab’s style. He preferred direct frontal attacks on military forces and would videotape them for their propaganda value.\n\nOne has to look at the man himself, according to Mr. Quiggin. There is no record of hostile statements by him against the US or Israel. The quote attributed to Khattab (Ex. A-1, T-4) regarding attacks on US troops in Saudi Arabia < “They seized our territory, and Muslims have the right to seek such a solution” > is a widely held view among Muslims because Saudi Arabia is the site of two of their most holy places.\n\nOn cross-examination, Quiggin disagreed with the suggestion that Khattab had Islamicized the Chechen conflict. In his view, the Chechens were Muslims to begin with, albeit mainly secular, and Khattab was not there long enough to have had that much influence on them.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-22", + "id": "fc-57473-132", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 39–41", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 314–315", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In Oloumi, above, a fraudulent English test was submitted as part of an application for permanent residence in the Federal Skilled Worker class. This Court held that the misrepresented fact was material because federal skilled workers must demonstrate language proficiency to be accepted. The false document could have induced an error in the administration of the IRPA because it could have been relied upon by a decision-maker to conclude that the applicant had demonstrated language proficiency.\n\nIn the present case, the Respondent submits that the Officer could have been prevented from undertaking an appropriate investigation and verification process and, therefore, could have erroneously determined that the Applicant met all the requirements of the IRPA had the Officer relied on the Applicants denial of a prior visa refusal. The misrepresentation was therefore material as it could have affected the process.\n\nIn my view, the misrepresentation in this case was material.", - "current_to": "2013-09-23", + "text": "Regarding Sayyaf, Quiggin believes that his background is clearer. He is an Afghan Pashtun who studied in Egypt and speaks fluent Arabic and English. Addressed by the honorific title Ustad, he qualified to teach Islamic law and was a Kabul University Professor. While in Egypt he probably fell under the influence of the Muslim Brotherhood. Sayyaf emerged as a combat leader during the anti-Soviet jihad and was identified by the Arabs, including the Saudi government, as someone they could deal with. Sayyaf was based in the south but also operated in the north. Most of the real fighting was done by the Afghans rather than the Arab volunteers. The post-war mystique about the role of the MAK and Al Qaeda is overblown, in Quiggin’s view.\n\nSayyaf had authority over his own guesthouses and camps. He provided training for his own people. At the outset, during the anti-Soviet war, he had a positive relationship with Bin Laden. But his focus was on Afghanistan and not other countries. He shared the common view among Muslims about the presence of US troops in Saudi Arabia. Sayyaf supported Rabbani and fought with the northern alliance as the Americans came in. And he was sought out by the US special envoy in 2003 to form part of the new administration. In Quiggin’s view, he is not known to support the global jihadist agenda or to have any territorial aspirations outside Afghanistan.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-23", + "id": "fc-57473-133", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 42", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 316–318", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The Officer does not specify what investigation and verification process potentially could have been bypassed as a result of the misrepresentation. However, section 9.5 of ENF 2 states that officers are required to be satisfied that a person meets the requirements of the IRPA and is not inadmissible. To make these determinations officers decide what procedures, including investigations, interviews and verifications are required. Some procedures are required by law, others are administrative. Given this discretion, and although it would have been preferable for the Officer to have been more specific, the failure to do so is not fatal. In any event, had he relied solely on the application which did not disclose the prior visa refusal, this could have induced an error in the administration of the IRPA as he could have erroneously issued a visa to the Applicant.", - "current_to": "2013-09-23", + "text": "The witness was taken to Exhibit A-2, T-3, Kathy Gannon’s account in “I for Infidel” of a meeting in Pakistan’s tribal region which suggests that Sayyaf willingly joined in the plot against the West. According to Quiggin, the outcome of the meeting does not suggest that Sayyaf submitted himself to the authority of an outsider and joined the global jihad. He remained focused on Afghanistan and loyal to Rabbani.\n\nOn cross-examination, he acknowledged that the name of the Abu Sayyaf Islamist militant group in the Philippines was derived from the Afghan Sayyaf after the father of the founder had stayed in one of his guesthouses during the anti-Soviet jihad. Other documents indicate that among the persons who stayed at his guesthouses over time included Khalid Sheikh Mohammed and leaders of Jamayah Islamaiah from Indonesia (A-2, T-10). The US Department of State reports on Afghanistan for 1995 and 1996 say that Sayyaf continued to harbour and train potential terrorists. On redirect, Quiggin questioned the reliability of those reports as the Americans did not have personnel on the ground in Afghanistan at the time.\n\nThe dispute in the MAK between Azzam and Bin Laden arose because the former preferred to work outwards in Central Asia. Others such as Bin Laden favoured returning to Egypt and Saudi Arabia to overthrow those governments. After Azzam is killed, Bin Laden fell under the influence of the virulent ideology of the EIJ members such as Ayman al Zawahiri. Many of the Afghan Arabs began to drift away to get on with their lives. Some went on to the jihad in other Central Asian countries. Others coalesced around Bin Laden and Al Qaeda.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-24", + "id": "fc-57473-134", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 43–44", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 319–321", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "I also cannot accept the Applicant’s submission made when appearing before me that, because CIC has access to the whole of his immigration history, an incorrect answer in his application is not material. His submission was that the incorrect answer did not affect the process because it was caught by CIC before a decision was rendered. This reasoning is contrary to the object, intent and provisions of the IRPA which require applicants for temporary residency visas to answer all questions truthfully. The penalty for failing to do so is that an applicant may be found to be inadmissible to Canada if the misrepresentation induces or could induce an error in the administration of the Act. It matters not that CIC may have the ability to catch, or catches, the misrepresentation. What matters is whether the misrepresentation induced or could have induced such an error. Accordingly, applicants who take the risk of making a misrepresentation in their application in the hope that they will not be caught but, if they are, that they can escape penalty on the premise of materiality, do so at their peril.\n\nNor was the misrepresentation cured by the Applicant’s response to the fairness letter. In this regard Justice Mosley in Haque, above, stated that “this Court has rejected the argument that paragraph 40(1)(a) is inapplicable where the misrepresentation is “corrected”: (Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paras 25, 27 and 29).”", - "current_to": "2013-09-23", + "text": "In Mr. Quiggin’s view, it is a misconception that the Muslim Brotherhood and Al Qaeda are allied in a common cause. In 1973, the Brotherhood chose to abandon violence as counterproductive. Some did not accept and formed Egyptian Islamic Jihad, including Ayman al Zawahiri. There has been no major terrorist incident attributable to the Brotherhood since. The Syrian chapter later followed suit. Zawahiri’s book “The Bitter Harvest” in 1991 was an attack on the Brotherhood. The head of Al Qaeda in Iraq issued a similar condemnation of the Brotherhood in 2003. Members of the Brotherhood are treated by Al Qaeda as apostates.\n\nIn reference to Hassan Almrei’s travels, Quiggin does not believe that someone who went to jihad in 1990-92 would be necessarily a threat to the security of Canada. He acknowledges that going to Tajikistan during their civil war would raise a concern to analysts. The association with Khattab and Sayyaf in itself is not a sufficient indicator, in his view, of a security risk.\n\nAl Qaeda’s ideology while couched in religious terms, is a political movement generated by resentment against the effects of colonialism. The empirical research of Marc Sageman and others has demonstrated that it attracts persons from middle class, low practising family backgrounds with higher education. The core membership was at a high point in 2001 (2000 – 3000) but recent estimates are of 2-300. There are about 23 affiliated groups which subscribe to the Bin Laden world view and recognize Al Qaeda leadership. Other home-grown individuals are inspired to act and connect with other like-minded persons through the Internet.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-25", + "id": "fc-57473-135", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 45", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 322–323", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "At the hearing before me the Applicant also submitted that because, between the time when the temporary residency visa was refused in Los Angeles and the time of the refusal in Seattle he was issued a work permit, this rendered the first refusal immaterial as the immigration authorities were clearly satisfied with his subsequent application. I cannot accept this reasoning. First, the refused applications were both for temporary residency visas, the work permit was a distinct application. Secondly, it is not known if the Applicant was requested to or did disclose the refused temporary residency when he applied for the work permit as neither the Applicant nor the Respondent led evidence on this point. And finally, the question asked on the temporary visa application was whether the Applicant had ever been refused any kind of visa, thus it was incumbent upon him to disclose the prior refusal regardless of the subsequent issuance of the work permit.", - "current_to": "2013-09-23", + "text": "The hypothesis that those who were once connected to Al Qaeda remain so forever does not stand up to scrutiny in Mr. Quiggin's opinion. Saudi Arabia has had some success with the rehabilitation of former extremists and Egypt has released thousands who have not gone back to violence. The Ministers case is concerned with inferences drawn from association or linkage to Al Qaeda. The Taliban supported Al Qaeda. Hamid Karzai supported the Taliban. Canada supports Karzai. If you took the logic to its extreme, in Mr. Quiggin’s view, one could say that the Canadian government is linked to Al Qaeda. It is all a question of context. Sheikh Ahmad Kutty\n\nSheikh Kutty began his education in Islamic studies in India and Saudi Arabia. He has served as an Imam since coming to Canada. He then earned a master’s degree in Islamic studies at University of Toronto and completed the coursework of doctoral studies in Shari’a law at McGill University. Presently he is a senior lecturer and resident scholar at the Islamic Institute of Toronto and a non-resident Imam at the Islamic Center of Canada, the Bosnian Islamic Center and Ansar Mosque. He also serves as a jurist-consult with IslamonLine.net, an international website supervised by international Muslim scholars, and on the Figh Council of North America, the pre-eminent Islamic legal body in North America.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-26", + "id": "fc-57473-136", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 46–47", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 324–325", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In addition to the failure to disclose the refusal, which was his statutory and duty of candour, the Applicant stated in his Statutory Declaration that he had never engaged in any unauthorized full time employment while holding an OCWP. However, this is contradicted by Attachment A of his October 11, 2012 application and the September 7, 2012 letter from IVIS Inc., which states that when the Applicant completed his education at NAIT, he started full time work on December 20, 2012 with IVIS Inc. This means that from December 20, 2010 until he was issued a work permit on June 1, 2012, he was working full time while not a student and holding only an OCWP thereby contravening the conditions of his prior admission to Canada. Accordingly, the Officer’s finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary residence based on the prior contravention was reasonable..\n\nIt should be noted, however, that the Officer’s assertion in the fairness letter that the Applicant was requested to surrender his OCWP but failed to comply and that this was the primary reason for the refusal of his Los Angeles application, is not supported by the CTR.", - "current_to": "2013-09-23", + "text": "Sheikh is a term of respect within the community for a person of wisdom. Sheikh Kutty is also an Imam and a mufti. Imam is the term used to describe somebody who leads prayers; usually one who has memorized the Koran. A mufti is a scholar in Islamic jurisprudence who issues fatawa (singular is fatwa) or rulings on questions relating to the Islamic faith, including acts of worship, family life and business transactions. He has written a number of scholarly papers on subjects such as Wahhabism, Sufism and translated one of the works of Sayyid Qutb from Arabic into his native language, Malayalam. He has also lectured at conferences, seminars as an expert on Islamic thought, Islamic law and Islam in general.\n\nThe Ministers acknowledged that Sheikh Kutty’s lifelong study of Islam and his recognized expertise in his community render him an expert in Islam. I had no difficulty in accepting his opinion evidence on the Islamic concept of jihad and the meaning of other Islamic terms.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-27", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 48", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "id": "fc-57473-137", + "doc_type": "caselaw", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", + "section": "", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 326", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The Respondent filed an affidavit of Ms. Leah Gabretensae, Admissions Unit Supervisor at CIC in response to the subject application. It attaches as an exhibit an email dated July 12, 2013 from Ms. Gabretensae to counsel for the Respondent stating that she had spoken to Rachel, no last name, at Norquest who confirmed that the Applicant was enrolled there from 2007 to April 24, 2009 taking upgrading courses with the intent of then entering the practical nursing program. He did not continue there beyond April 2009. The affidavit also attaches as an exhibit an email dated July 13, 2013 from Ms. Kathy Galloway to Ms. Gabretensae and counsel for the Respondent stating that NAIT had checked its records and advised her that the Applicant began his studies there in January 2010 and completed the one year Water and Waste Management Technician program in December 2010 with honours. The affidavit goes on to state that the designated institutional representative (DIR) “at the post-secondary educational institution where the Applicant was enrolled at that time [when the April 24, 2009 OCWP was issued] would have informed the Applicant that the Applicant was required to surrender the Work Permit to the nearest CIC office once he no longer met the eligibility criteria”. The affidavit states that it (the affidavit) was made for the purpose of opposing the Applicant’s application for judicial review.", - "current_to": "2013-09-23", + "text": "Sheikh Kutty explained his understanding of several terms which frequently arose in the evidence: Dar ul-Islam vs. Dar ul-Harb: realm of Islam vs. the realm of war. The place is said to be Dar ul-Islam where there is no war and everybody is free to practice their religion. When Muslims are not free to practice their religion, that is said to be the realm of war and persecution. Sheikh Kutty explained that this division of the world is viewed by modern scholars as irrelevant as everyone in democratic countries is free to practise their religion. Hafiz: one who has memorized the Koran. Memorization and recital of the Koran is valued as one of the most effective means of transmitting the Divine Word in Islam. Harith/hareth: derived from a hadith “truest name is al hareth”; someone who strives and earns. Considered a very good kunya for someone who is religious. Hijra: original concept is of immigrating to another country as a place of refuge. Kunya/Kunyah (pl.): a common term of endearment and respect for males in Arab communities. It is not a name but something one is called. Ribat: root is the Arabic word to tie, meaning to bind yourself together in solidarity. Muslims practice spiritual ribat – worshiping and meditating to God. By extension, it is used in the sense of guarding the frontier of Islamic territory where one might be called upon to engage in battle. Defending Islamic territory is considered fard al-kifayah, a sacred and collective duty. Ribat is a valid and important contribution where there is a legitimate jihad. Shahid/Shaheed: literally one who testifies. The Islamic concept is that of standing as a witness of truth and justice. One who gives his life for the truth is called Shahid.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-28", + "id": "fc-57473-138", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 49–50", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 326–327", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "It appears that the purpose of the affidavit was to bolster the CTR which contains no record supporting the finding by the Officer that the Applicant was actually asked, but refused, to surrender his OCWP nor explaining why he was not in compliance with the OCWP at some time before a February 1, 2012 GMCS entry which stated this to be the case but at which time the Applicant was enrolled full time at NAIT. The affidavit evidence as to the general responsibilities of DIR’s in administering OCWP’s, including informing students of the surrender requirements, is not evidence that the Applicant was requested to and refused to surrender same. Moreover, it is trite law that new evidence is only admissible on judicial review to resolve issues of procedural fairness or jurisdiction which exceptions have no application in this case (Oloumi, above, at para 10; Alabadleh v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at para 6; Albajjali v Canada (Minister of Citizenship and Immigration), 2013 FC 660 at para 12).\n\nHowever, even in the absence of an evidentiary basis for the assertion that the Applicant was requested to and refused to surrender the OCWP and that this was the primary reason for the Los Angeles refusal, there was, as set out above, a sufficient evidentiary basis in the record before the Officer to support the fact that the Applicant worked full time while holding only a OCWP, after graduation from NAIT, from December 20, 2010 to June 1, 2012.", - "current_to": "2013-09-23", + "text": "The term has been distorted in its modern application to suicide bombers as taking one’s own life is a cardinal sin of Islam. Takfir: describing someone as an apostate; a Kaffir. The Sunni mainstream does not characterize anyone who prays to Mecca as apostate. But the term was employed by Sayid Qutb, a “born again Muslim” and not a scholar, to refer to anyone who did not rule according to Sharia law. Taqiyah: This is a Shia term, not Sunni. During a time of oppression by majority Sunni’s, a Shi’ite may disguise himself as a Sunni. Dr. Rudner had discussed this in the context of the Al Qaeda approved practice of deception before the authorities.\n\nThe witness explained that there have been more than 13 schools of jurisprudence in Sunni Islam. Some became predominant in different regions. To-day there are four main schools. Hanafism was the official school of the Ottoman Empire and the dominant tradition in North India, Pakistan and Afghanistan. In South India, the dominant school is the Shafi’i. Saudi Arabia follows the literalist tradition of the Hanbalis. Malakis are mainly in North Africa including Egypt. Wahhab was a Hanbali who struggled against some of the practices that were deemed pagan or foreign such as Sufi mysticism. Salafists are traditionalists who wish to go directly back to the original sources; the early supporters of the Prophet. To-day most Salafis would say that they do not belong to any of the schools.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-64594-29", + "id": "fc-57473-139", "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 51", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 328–330", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The Applicant contravened the conditions of his admission to Canada on a prior occasion by working full time when not authorized to do so and he misrepresented this in his statutory declaration. He also misrepresented his prior temporary resident visa refusal. In my view, both misrepresentations were material. Accordingly, the Officer’s finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident and that he had made material misrepresentations pursuant to subsection 40(1)(a) of the IRPA was reasonable and defensible in respect to the facts and the law. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No question of general importance for certification was proposed and none arises. “Cecily Y. Strickland” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-674-13 STYLE OF CAUSE: GOBURDHUN v MCI PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: August 27, 2013 REASONS FOR JUDGMENT AND JUDGMENT BY: STRICKLAND J. DATED: September 23, 2013 APPEARANCES: Ranbir S. Thind FOR THE APPLICANT Anna Kuranicheva FOR THE RESPONDENT SOLICITORS OF RECORD: Ranbir Thind & Associates Edmonton, Alberta FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta FOR THE RESPONDENT", - "current_to": "2013-09-23", + "text": "In Sheikh Kutty’s view, the tragedy of Islam to-day is that there are engineers such as Bin Laden who claim to be scholars and are giving rulings based on their interpretation of the original Koran. The study of the original Koran requires an understanding of classical Arabic that takes years to acquire. The people most likely to adopt the Bin Laden philosophy are those who are not well brought up in Islam; those who are upset by other things and seek a religious justification for what they want to do; not those who are well educated in the faith. Similarly, the Taliban were half-learned scholars; a danger to faith as much as half-learned doctors are a danger to health.\n\nSheikh Kutty testified that the word “jihad” stems from a root which means to exert oneself to the utmost. It is used in the Koran primarily to refer to exerting oneself for the sake of God to realize his will. In the widest sense, it includes all forms of struggle to make truth and justice prevail. The main or supreme form of jihad (often referred to as al-jihad al-akbar) is spiritual or internal warfare (mujahada) to master one’s self. He acknowledged that the Koran does call for making jihad against the kaffirs or infidels but in the spiritual sense, not military.\n\nEach Muslim is bound by the five Pillars of Islam: profession of faith (shahadah), prayer five times daily (salat), almsgiving (zakat), fasting during Ramadan (sawm), and pilgrimage to Mecca once in a lifetime (hajj). Jihad is not one of the five pillars, but spiritual jihad engages all Muslims every day.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-1", + "id": "fc-57473-140", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 1", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 331–333", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Lorebeth Garcia’s application for permanent residence as a member of the live-in caregiver class was refused because her husband, Joresce Ballesteros, was found criminally inadmissible to Canada. That inadmissibility was based on a bar fight in the Philippines in 2006 that resulted in charges against Mr. Ballesteros that were later withdrawn when the complainant filed an Affidavit of Desistance stating that the accused parties, including Mr. Ballesteros, had no intention to kill or injure him and that if called to testify, his testimony would completely exonerate the accused. A visa officer concluded that Mr. Ballesteros’ acts amounted to assault causing bodily harm under sections 265 and 267 of the Criminal Code, RSC 1985, c C-46, and that despite the withdrawal of the charges there were reasonable grounds to believe that the offence had occurred. They therefore concluded Mr. Ballesteros was inadmissible pursuant to paragraph 36(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].", - "current_to": "2021-02-11", + "text": "Another aspect of jihad is a collective military duty. The verses that sanctioned the use of force in jihad were revealed in the aftermath of the oppression of the Prophet and his followers. According to Sheikh Kutty, military jihad is only allowed in the following cases: a. To defend one’s right to practice one’s faith; b. To defend oneself against aggression; and c. To aid those who suffer persecution and aggression.\n\nIn Sheikh Kutty’s view, the only legitimate jihad is defensive jihad. Muslims may not engage in military or offensive jihad against those who allow them to live in peace. They may only fight combatants and can not attack non-combatants such as women and children. For a jihad to be legitimate, it must be declared by a legitimate authority. Many Muslim scholars said that fighting the Soviets and liberating Afghanistan from the occupation was a valid jihad. This was supported by Saudi Arabia. Muslim scholars have also agreed that what happened in Tajikistan and Chechnya called for a legitimate jihad.\n\nActs of terrorism such as those committed by Al Qaeda do not fall under the category of legitimate military jihad sanctioned by the Islamic faith. In Sheikh Kutty’s view they are in clear violation of a number of established principles laid out in the Koran including that one cannot take one’s own life such as in the course of a suicide bombing.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-2", + "id": "fc-57473-141", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 2–4", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 334–336", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "For the reasons given below, I agree with Ms. Garcia that the visa officer’s decision was unreasonable and unfair. The visa officer did not undertake the requisite assessment of the elements of the Canadian offence, and in particular the defence of self-defence that Mr. Ballesteros had maintained since the charges were filed. Nor did the visa officer adequately assess the evidence as a whole, set out why they did not accept Mr. Ballesteros’ evidence, or explain why the evidence continued to provide reasonable grounds to believe an offence was committed notwithstanding the complainant’s Affidavit of Desistance. Finally, it was unreasonable for the visa officer to assume the Affidavit of Desistance and subsequent withdrawal of the charges resulted from a settlement in the absence of evidence to that effect. It was also unfair to have done so without giving Ms. Garcia notice of this issue and an opportunity to respond thereto.\n\nThe application for judicial review is therefore allowed.\n\nWhile phrased somewhat differently, the primary issues raised by Ms. Garcia on this application for judicial review are the following: Did the visa officer err in finding that Mr. Ballesteros was inadmissible pursuant to paragraph 36(1)(c) of the IRPA by failing to undertake the required analysis of the offence and/or unreasonably assessing the evidentiary record? Did the visa officer breach the duty of procedural fairness in reaching their decision?", - "current_to": "2021-02-11", + "text": "Sheikh Kutty disagrees with Dr. Rudner’s view of Islam requiring either conversion or death. He says that Islam recognizes the rights of religious minorities to autonomy. One can’t be forced to convert. The result would be null and void because of the notion that there must be no compulsion in religion. He says that Koranic verses have been taken out of context for political reasons. The references relied upon are those which refer to attempts by pagan tribes to defeat the Prophet and his supporters. The Koran sanctioned attacks on them. The witness acknowledged that there have been historical instances of forced conversion; in India, for example, during the Mughal Empire.\n\nOn cross-examination, Sheikh Kutty disagreed with Azzam’s description of jihad, in particular that it referred only to combat with weapons (Ex. A-3, A-31). He disagreed with the proposition that Islam was spread only from the battlefield and described how it was propagated in his region of South India by wandering Sufi mystics. He discussed how some mixed cultural practices with Islamic religious obligations. He agreed that US foreign policy is not a justification for murder in Islam and neither is the presence of US soldiers in Saudi Arabia so long as they are not desecrating the holy places. Dr. Lisa Given\n\nDr. Given is an Associate Professor in the School of Library and Information Studies, Faculty of Education, at the University of Alberta. In 2007 she became the director of the International Institute for Qualitative Methodology at the University of Alberta. She holds a Ph.D. in Library and Information Science.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-3", + "id": "fc-57473-142", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 5–6", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 337–339", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The parties agree that the first of these issues goes to the merits of the visa officer’s decision and is reviewable on the reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25. To assess the reasonableness of a decision, the Court considers “the outcome of the administrative decision in light of its underlying rationale, in order to ensure that the decision as a whole is transparent, intelligible and justified”: Vavilov at paras 15. In doing so, the Court considers the administrative context of the decision, including the institutional setting and the evidence and submissions before the decision maker: Vavilov at paras 89–96, 125–128. A reasonable decision has an “internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker”: Vavilov at paras 85, 90, 99, 105–107. While reasonableness review is “robust,” the Court will not set aside a decision unless satisfied there are “sufficiently serious shortcomings such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov at paras 12–13, 99–100.\n\nThe second issue goes to the process leading to the decision, rather than the substance of the decision itself. On such issues, the Court asks whether a fair and just process was followed, having regard to all of the circumstances: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54. Such review is “best reflected in the correctness standard,” although no standard of review is actually being applied: Canadian Pacific at para 54, quoting Eagle’s Nest Youth Ranch Inc v Corman Park (Rural Municipality #344), 2016 SKCA 20 at para 20.", - "current_to": "2021-02-11", + "text": "Dr. Given was tendered as an expert in research methodology in determining the reliability of documentation. She was asked by counsel for the Respondent to review and comment on the reliability of the sources cited in the Summary of the Security Intelligence Report prepared by CSIS.\n\nDr. Given currently teaches graduate level courses in the areas of research methods and information literacy. She trains students in effective scholarship practices, including the critical assessment of information resources. Dr. Given has testified as an expert witness in information behaviour in two previous Federal Court cases, including one her affidavit evidence was accepted by this Court.\n\nThe Ministers object to Dr. Given’s opinion evidence on the ground that it trenched on the court’s function of assessing the reliability and weight of the documentary evidence. They contend that her opinion is circumscribed by her lack of expertise in the subject matter at issue in this case. In that regard, they submit, her opinion evidence does not meet the necessity criterion as she is not better placed than the Court to determine the reliability of a newspaper article or Internet report. They accept that she may and did offer fact evidence in relation to what she found when she went to Internet websites and described the content of the documents in the references indices.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-4", + "id": "fc-57473-143", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 7–8", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 340–341", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "I note for completeness that Ms. Garcia’s application for judicial review also raised an issue regarding the visa officer’s failure to consider deemed rehabilitation. That argument was withdrawn at the hearing.\n\nMs. Garcia has worked in Canada as a live-in caregiver since 2009. She applied for permanent residence in 2011 as a member of the then “live-in caregiver class” and added her husband, Mr. Ballesteros, as an accompanying dependent in the application in 2014. Ms. Garcia’s application was governed by, among other provisions, subparagraph 72(1)(e)(i) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which requires a foreign national in Canada seeking to become a permanent resident to establish that “they and their family members, whether accompanying or not, are not inadmissible.”", - "current_to": "2021-02-11", + "text": "I found Dr. Given’s evidence to be helpful, particularly her testimony about the five core criteria that are used in library and information science to determine the reliability of information: authority, accuracy, objectivity, currency and coverage. These criteria are simply a framework which anyone can use to assess the credibility and reliability of a document. They invite questions such as who has written the document, what are their credentials, what is their stance on the issues, do they have a bias or a particular agenda? What is the authority of those who are cited or quoted in the document itself? Can the factual content of the information be verified? Is the information current? Has new information come to light that may call into question an earlier report. Is the information complete or has an excerpt been pulled out of the context of the rest of the document?\n\nDr. Given’s evidence assisted the Court in considering the reliability of the information in the reference sources. She illustrated how those criteria could be applied to documents that CSIS had relied upon in preparing the SIR. In doing so, Dr. Given gave her opinion that the information in certain documents did not satisfy the criteria. She did not say that the content of the information was incorrect as she is not an expert in the subject matter, but that it would be difficult for an impartial reader to assess reliability when insufficient information was provided.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-5", + "id": "fc-57473-144", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 9", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 342–344", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Subsection 36(1) of the IRPA sets out grounds for inadmissibility for serious criminality. While the only applicable provision in the current case is paragraph 36(1)(c), I also reproduce paragraph 36(1)(b) as it is relevant to some of the discussion below: Serious criminality Grande criminalité 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] […] (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans.", - "current_to": "2021-02-11", + "text": "For example, on-line organizations such as the “IntellCenter” provide little information about their methods or the people behind them. There is a circular citation pattern in which organizations such as this cite each other’s reports. This may lead the reader to believe that their sources are authoritative or that they are reporting more information than is actually the case. The firm Global Security is said to have been founded by John Pike in 2007 but no details are provided about his educational background and credentials. Who funds the organization?\n\nThe document at tab 85 is said to have been last modified 27-04-2005 but what information was modified? There is no authority to the information from her perspective. The source of the document at tab 8, the ERRI website, is replete with hyperbolic language. There is no information about the authors and the vast majority of the links at its web site are dead and not being kept current. This is not a credible source.\n\nIn other documents, questions of possible bias may be raised such as with Bodansky’s book on the Chechen Jihad (tab 136), given his alleged links with Russian intelligence. No citations are provided for the sources of Bodansky’s information. In other instances, the document contains a bald statement such as that found at tab 90 with no attribution: “Khattab is thought to have become involved with Bin Laden…”. The source is an article from The Express newspaper in the UK reporting on a football coach’s despair that his team has to play in war torn Dagestan.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-6", + "id": "fc-57473-145", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 10–12", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 345–347", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Section 33 of the IRPA provides that the facts that constitute criminal inadmissibility include those for which there are “reasonable grounds to believe” have occurred: Rules of interpretation Interprétation 33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33 Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.\n\nThe Supreme Court of Canada has described this standard as being more than mere suspicion, but less than a balance of probabilities: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114. Reasonable grounds exist “where there is an objective basis for the belief which is based on compelling and credible information”: Mugesera at para 114. The decision maker must be satisfied that these facts as found on the “reasonable grounds to believe” standard do constitute an offence, as a question of law: Mugesera at para 116.\n\nThe relevant issue addressed by the visa officer was therefore whether there were reasonable grounds to believe Mr. Ballesteros, as a family member of Ms. Garcia, had committed an act in the Philippines that is an offence there and that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years.", - "current_to": "2021-02-11", + "text": "On cross-examination, Dr. Given acknowledged that the anonymity of a confidential source does not make the information inaccurate and that on-line sources such as Wikipedia can contain accurate information. With some on-line sources, such as the Jane’s publications, her review was limited as she did not have a subscription. However, she did not accept that the subscriber content would necessarily provide more detail of the sources. She agreed that she could have researched the authors of some of the sources on-line and found more information about them.\n\nA document at tab 25 posted on July 6, 2004 in Jane’s Intelligence Review is said to be authored by a Dr. Christopher Jasparro of the “Asia Pacific Center for Security Studies” which appears to be linked with the US government. One would have to know who Dr. Jasparro was to give this report credit. Counsel for the Ministers produced a syllabus for the US Naval War College listing him as an instructor in security matters. Dr. Jasparro attributes the Madrid bombings to Al Qaeda. A report at tab 27 from Madrid dated March 9, 2006 says that the results of a two year investigation concluded that it was the responsibility of home-grown radicals.\n\nThe point of this testimony, as Dr. Givens reiterated on re-direct examination, is that no one could assess the reliability of the Jasparro document from its presentation without more information. In many instances, the documents relied upon in support of statements in the public summary contain no detail about the source of the information.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-7", + "id": "fc-57473-146", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 13–14", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 348–350", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Mr. Ballesteros and four of his companions were charged in the Philippines with “frustrated homicide.” The charge arose from an event in June 2006 in which Mr. Ballesteros’ group was involved in a fight outside a karaoke bar in Echague with two other men, Joenard Humiwat and Jacinto Balisi. The complainant, Mr. Humiwat, alleged he was hit with a beer bottle by one of Mr. Ballesteros’ friends, and was then severely beaten by Mr. Ballesteros’ group. Mr. Humiwat suffered numerous injuries including traumatic brain injury, facial injuries, and a skull fracture.\n\nThe five co-accused filed a joint affidavit in the Philippine criminal proceeding. They alleged that there had been earlier verbal altercations in the karaoke bar between the co-accused on the one hand and Mr. Humiwat and Mr. Balisi, on the other. After Mr. Ballesteros’ group left the bar, Mr. Balisi stabbed one of them without warning. In the ensuing melee, Mr. Ballesteros was also stabbed when he tried to intervene. The co-accused agreed that there was a fistfight, but asserted that they were acting in self-defence and denied any of them hit Mr. Humiwat with a bottle. This directly contradicted Mr. Humiwat’s story. Mr. Ballesteros in particular swore in the affidavit that it was physically impossible for him to have attacked Mr. Humiwat since he had already been injured from the stabbing.", - "current_to": "2021-02-11", + "text": "Dr. Given’s evidence drew my attention to questions about the sources that were not apparent on the face of the documents. Ultimately, it is for the Court to determine whether the information provided by the Ministers is “reliable and appropriate” in the meaning of the statute. Dr. Brian Williams\n\nProfessor Williams is Associate Professor of Islamic History at the University of Massachusetts at Dartmouth. He teaches Middle Eastern and Central Asian history and the focus of his research is on Central Asia, Afghanistan and Chechnya. He previously lectured at the University of London School of Oriental and African Studies in Middle Eastern-Balkan History and at the University of Wisconsin in Islamic Central Asian and Medieval Middle Eastern History.\n\nProfessor Williams has a Ph.D. in Middle Eastern and Islamic Central Asian History and two Masters’ degrees, one in Russian and East European History and another in Ottoman Language and Turkic History. Professor Williams has published two books and has contributed to over 60 chapters and journal articles on Al Qaeda and jihadism in Afghanistan, Central Asia and Chechnya. He has also had his work reported in Time Magazine and the New York Times.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-8", + "id": "fc-57473-147", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 15–17", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 351–352", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The prosecutor in the case concluded that despite the co-accused’s assertions, these were matters of defence “best appreciated after a full-blown trial in court.” He therefore signed a resolution recommending the filing of an information. Mr. Ballesteros and the other accused filed a motion seeking reconsideration of that resolution. In an order dismissing the motion, the prosecutor found that there was “enough ground to believe that they committed the crime charged and they are probably guilty thereof and should be held for trial.” At the same time, the prosecutor noted that there were matters of credibility and that the only issue for him was whether there was sufficient evidence to establish a belief that the crime had been committed. He also concluded that the defence of self-defence was something the accused had the burden of proving and that they “must be given the chance to prove their defense before the proper court.” An Information was therefore laid in March 2007.\n\nIn March 2009, the prosecutor filed a motion to dismiss the case. The motion was based on Mr. Humiwat’s sworn “Affidavit of Desistance,” in which he asserted that: what transpired was “but a product of misapprehension of facts and misunderstanding”; the accused had no intention to kill or injure him; he was no longer interested in prosecuting the case or standing as witness; and should he be called to testify, he would “testify so as to completely exonerate [the accused] from any civil or criminal liability.”\n\nThe Information against Mr. Ballesteros and the others was dismissed by order of a judge on March 5, 2009.", - "current_to": "2021-02-11", + "text": "In addition to his academic background, Professor Williams has had hands-on experience in areas relevant to this case. He carried out field work in Afghanistan for the Central Intelligence Agency’s Counter-Terrorism Center in 2007 tracking suicide bombers and has served as an advisor for the U.S. Army’s Special Operations Command and Joint Information Operations Warfare Command. In 2008 he wrote the field manual for the U.S. military on Afghanistan and testified as an expert witness in the trial of Osama Bin Laden’s driver, Salim Hamdan, the first trial held at Guantanamo Bay. During his travels, Professor Williams had an opportunity to interview Taliban prisoners of war and Al-Qaeda linked figures such as Abu Hamza Al Masri.\n\nProfessor Williams has lived in a number of different countries, including Turkey, Kazakhstan, Russia in the former Soviet Union and the Ukraine. He has also traveled to various zones of jihad and terrorism in Central Asia and the Middle East from the Caucasus and Kosovo to Afghanistan and Kashmir. He speaks Turkish, Turkmen and Russian. He does work for the US government including training special operations forces and marines and had a top secret clearance. In addition to his field work for the CIA, he was returning to Afghanistan this year for the US Army. He has also worked for Scotland Yard and Afghan intelligence. In short, Professor Williams’ experience is both academic and practical.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-9", + "id": "fc-57473-148", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 18–19", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 353–355", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The Global Case Management System (GCMS) notes show that in December 2018, a visa officer in Manila reviewed Mr. Ballesteros’ criminal file from the Philippines. After referring to the charge laid against Mr. Ballesteros, the visa officer’s analysis proceeded as follows: Said case was dismissed on 05 March 2009 following years of hearings that culminated in the complainant executing an affidavit of desistance stating that he was no longer interested in pursuing the case. On his written explanation, Joresce states that the physical injuries sustained by the complainant was a result of the complainant and his friend’s attack on him and his friends. Meanwhile, in his affidavit, the complainant states that one of Joresce’s companions hit him with a bottle of beer on the head which caused him to fall to the ground while the rest, Joresce included, started to beat him up. While the complainant executed an affidavit of desistance, based on the court documents on file including the medical cert of the complainant, I am satisfied that Joresce committed an act which, if committed in Canada can be equated to assault causing bodily harm as described in Section 265(1) of the Canadian Criminal Code […] [Emphasis added.]\n\nThe remainder of the visa officer’s analysis in the December 2018 entry simply reproduces portions of sections 265 and 267 of the Criminal Code, and concludes that Mr. Ballesteros is inadmissible pursuant to paragraph 36(1)(c) of the IRPA.", - "current_to": "2021-02-11", + "text": "Dr. Williams was tendered as an expert on the roles and relationships of the warlords, foreign jihadis, Chechens and terrorists who were operating in the region during the relevant timeframe. The Ministers accepted that he was qualified to give opinion evidence in this area due to his research and writing on the links between the Afghan Arabs in the Chechen conflict in general, and the prominent role that Khattab and his Arab followers played in that conflict.\n\nThe Ministers contend, however, that Dr. Williams’ report descends into advocacy and is not in the proper format for an expert opinion. They contend that the report argues the facts and advocates the respondent’s position, “similar to what one would expect from counsel’s closing argument” citing Dulong v. Merrill Lynch Canada Inc., (2006), 80 O.R. (3d) 378 at para. 30. They submit that in his testimony, Dr. Williams proved to be much more balanced and suggest that he may have initially misapprehended the nature of the allegations against the respondent. I don’t accept that conjecture. His knowledge of the Ministers’ case against Hassan Almrei stems directly from the public summary of the SIR.\n\nDr. Williams’ report is highly critical of the content of the public summary. It lacks the veiled references that one might normally expect to see in an expert report. But that does not reflect advocacy or an abdication of the neutrality that the courts demand from experts. Rather, it reflects an academic expert’s impatience with what he considered to be shoddy work. As Dr. Williams put it, he would have given the summary a failing grade had it been submitted by one of his students.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-10", + "id": "fc-57473-149", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 20", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 356–357", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Following this entry, a “fairness letter” was issued to Ms. Garcia, stating that Mr. Ballesteros had been found inadmissible pursuant to paragraph 36(1)(c) of the IRPA and providing an opportunity to make submissions on the issue. Ms. Garcia responded with submissions and a statutory declaration from Mr. Ballesteros, each of which underscored his version of the events at the bar and his view that he was wrongly charged. Mr. Ballesteros also repeated that he and his companions were the first to have filed a complaint with the police against Mr. Balisi, and that the complaint against Mr. Ballesteros and his friends had been brought to respond to the complaint against Mr. Balisi. Ms. Garcia noted the dismissal of the charges and cited this Court’s decision in Arevalo Pineda for the principle that dismissal of charges is prima facie evidence that the crimes were not committed: Arevalo Pineda v Canada (Citizenship and Immigration), 2010 FC 454 at para 31.", - "current_to": "2021-02-11", + "text": "The Ministers had some success in eliciting testimony more favourable to their case during Dr. Williams’ cross-examination. In fact, he acknowledged the validity and strength of some of the documentary evidence assembled by the Ministers’ legal team and the depth of the preparation by counsel. This reinforced my view of the objectivity of his opinion evidence. Nonetheless, Dr. Williams never abandoned the view he expressed in his report about the quality of the CSIS public summary.\n\nI found Dr. Williams’ evidence to be very helpful in understanding the history of events in Afghanistan, Tajikistan and Chechnya relevant to these proceedings and the relationships between key actors in those events. His perspective on which authors could be considered authoritative was also very useful as he knows many of them personally, knows their work and how they came by the information they have published.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-11", + "id": "fc-57473-150", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 21", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 358–360", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The file was again referred to Manila. The same officer considered the file and in further GCMS notes dated July 2019 focused on the withdrawal of the charge and the Affidavit of Desistance: I had already taken note of the dismissal of the case during the initial criminality review. Nonetheless, an affidavit of desistance executed by the complainant does not necessarily mean that the act Joresce was accused of was not committed by him. Given the lengthy process of trial in the Philippines, it is common practice to settle cases outside of the court. If all parties are amenable to the terms of the settlement, the workaround is for the complainant to execute an affidavit of desistance stating that they misunderstood the facts and that they are no longer willing to pursue with the case. This is in view of having the case dismissed for reason that there will no longer be a witness to testify in court and the accused’s guilt can therefore not be established beyond reasonable doubt. Therefore, despite the dismissal, the officer must still thoroughly review the circumstances that led to the filing of the charge including the evidences that have been submitted in order to make an accurate admissibility assessment. I have considered the reply to the procedural fairness letter however the information included therein does not change my assessment on the criminality of PA-CDA’s spouse. Based on the information before me, I am still satisfied that Joresce is criminally inadmissible to Canada under A36(1)(c). [Emphasis added.]", - "current_to": "2021-02-11", + "text": "Williams has turned down requests to testify in 14 Al Qaeda related cases. He was sceptical about this one also but agreed to read the materials. As he did, he says, he had a growing concern that the government story did not fit what he knew about the history of the region. He found glaring historical errors and misstatements. Williams says he would have failed a student who relied on flimsy internet sources such as those in the public summary. In his view, the document was prepared under pressure and with orders to find linkages between Almrei and Al Qaeda. As a result, the analysts used “wiki-intel” to hastily paste together reckless claims. Williams claims he had never seen such a poorly prepared analysis of this nature. In reading the summary he hadn’t found the indicators or “red lights” that would have pointed to Almrei having an Al Qaeda involvement such as presence at Al Qaeda camps in the Pashtun belt in the mid-1990s after Bin Laden assumed control of them.\n\nDr. Williams noted that very few people were studying Bin Laden and the Taliban prior to 9/11. Post 9/11, he says, many authors with no direct experience in the region “jumped on the bandwagon” and sensationalized Bin Laden and Al Qaeda.\n\nWilliams had lived in Tashkent while he was doing research for his PhD prior to 1999. The Taliban were then ethnically cleansing non-Pashtun’s, such as the Uzbeks in the north. He interviewed the refugees. In 2003 he went to Kabul and lived with the Uzbek leader, General Abdul Rashid Dostum. He travelled north through the Hindu Kush, carrying an AK-47 for protection, and interviewed Taliban prisoners of war. In 2005 he spent time with the Tajiks and lived in Kunduz, the area of the Taliban’s last stand in 2001.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-12", + "id": "fc-57473-151", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 22–23", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 361–362", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Ms. Garcia’s file was referred to Edmonton, where a visa officer relied on the Manila officer’s conclusion in reaching the determination that Ms. Garcia was inadmissible and refusing her application for permanent residence. Although the Edmonton visa officer said their decision was made based on the information before them, they conducted no independent analysis of the matter. The reasons for the refusal are therefore effectively those of the officer in Manila as set out in the two GCMS notes of December 2018 and July 2019, and the parties argued the application on this basis.\n\nThe visa officer concluded there were reasonable grounds to believe Mr. Ballesteros committed acts that if committed in Canada, would constitute the offence of assault causing bodily harm. To reasonably reach this conclusion, the visa officer had to assess whether there were reasonable grounds to believe Mr. Ballesteros committed acts that would meet the elements of the Canadian offence. It is worth noting that in Vavilov, the Supreme Court used criminality findings in the immigration context as an example of the legal constraints imposed by precedent. The Court underscored that it would “clearly not be reasonable” for an immigration tribunal considering whether an applicant’s act constitutes a criminal offence under Canadian law to adopt an interpretation inconsistent with how Canadian criminal courts have interpreted it: Vavilov at para 112. While the evidentiary standard applicable in the context of criminal inadmissibility is lower than the standard applicable in a criminal prosecution, the question of law as to what constitutes an offence remains the same: Mugesera at para 116.", - "current_to": "2021-02-11", + "text": "Dr. Williams provided an overview of the development of Al Qaeda and its revival of the ancient concept of jihad that had died out in the modern era with nationalism, pan-Arabism, Baathism and other secular political movements. They did this with the CIA’s support to fight the Soviets and attracted Arab volunteers. But the fighting was done mainly by the Afghans. It was a “Jihad tour” for the Arabs. The “Gucci Jihadis” came with lots of money for the adventure and to go home and glory in it. They weren’t well trained, didn’t fight well and were more of a burden for the Afghans. None of them were a decisive factor in the war against the Soviets. Most went home but some, like Khattab, stayed on to defend Islam in other territories.\n\nThe larger jihad movement is part of Williams’ research and teaching interests. After 9/11, he says, it was conflated with Al Qaeda by many. In his view, there is a difference between those who subscribe to Al Qaeda and those who are part of the global jihad. Al Qaeda was formed to overturn regimes in the Middle East that Bin Laden and those who followed him considered apostate such as Saudi Arabia.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-13", + "id": "fc-57473-152", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 24–25", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 363–364", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "As stated above, the visa officer reproduced the definition of assault in subsection 265(1) of the Criminal Code and the language of subsection 267(b), which provides for a maximum ten-year sentence where an assault causes bodily harm. While the visa officer did not specifically enumerate the various elements of the offence, an administrative decision need not take the form of a jury charge or a criminal court decision: Vavilov at paras 91–92. Nonetheless, for reasons to be “justified,” it must be clear that the analysis required by the applicable statutory provision has been undertaken in some form or other: Vavilov at paras 95–96, 108.\n\nHere, the visa officer clearly considered certain elements of the offence, including the existence of bodily harm (referring to the “medical cert of the complainant”) and whether Mr. Ballesteros had been involved in the assault on Mr. Humiwat. Ms. Garcia argues, however, that the officer did not address the issues of whether Mr. Ballesteros himself caused Mr. Humiwat’s injuries and whether his actions were undertaken in self-defence.", - "current_to": "2021-02-11", + "text": "In contrast, Abdullah Azzam was a comparative moderate who wanted to defend oppressed Muslims and was not a supporter of terrorism. Abdullah Azzam was sponsored by the CIA to tour the US and collect funds for the jihad in Afghanistan. He was no Bin Laden and was ultimately murdered by the Egyptians in Al Qaeda. Similarly, Khattab took funds from the Saudi Royal Family through their charities, such as the Al Haramain foundation, at a time when Bin Laden was actively opposing them. They considered it their religious duty to defend endangered Muslim communities. Many members of the larger jihad movement were shocked and appalled by 9/11 and considered Bin Laden to be a disgrace for violating the Koran’s prescription on killing innocents.\n\nSayyaf was the Saudi’s man in Afghanistan and was funded by them and the CIA through Pakistan’s ISI. He spoke fluent Arabic and controlled a Pashtun fighting force. A pragmatist willing to work with moderates He fought for years alongside Massoud in the Northern Alliance and not with the hard-core fundamentalist leaders such as Hekmatyar who allied themselves with the Taliban. Williams agrees that Sayyaf did terrible things such as the campaigns against the Hazzara in Kabul and has blood on his hands stemming from the civil war period.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-14", + "id": "fc-57473-153", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 26", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 365–366", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "I question whether the visa officer necessarily had to address whether Mr. Ballesteros himself caused the injuries, in light of section 21 of the Criminal Code and the principle of accessorial liability. However, I need not decide that issue since I agree it was unreasonable for the officer not to undertake any material assessment of the issue of self-defence. Subsection 34(1) of the Criminal Code outlines a defence to an offence in Canada based on the use or threat of force: Defence – use or threat of force Défense – emploi ou menace d’emploi de la force 34 (1) A person is not guilty of an offence if 34 (1) N’est pas coupable d’une infraction la personne qui, à la fois : (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; a) croit, pour des motifs raisonnables, que la force est employée contre elle ou une autre personne ou qu’on menace de l’employer contre elle ou une autre personne; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and b) commet l’acte constituant l’infraction dans le but de se défendre ou de se protéger — ou de défendre ou de protéger une autre personne — contre l’emploi ou la menace d’emploi de la force; (c) the act committed is reasonable in the circumstances. c) agit de façon raisonnable dans les circonstances", - "current_to": "2021-02-11", + "text": "The claim in the public summary that Sayyaf was close to Bin Laden is not supported by the facts, in Williams view. The two men may have met and been together in the mujahidin war against the Soviets; but they clearly fought against each other later. Few Afghans were members of Al Qaeda; Sayyaf was part of the Northern Alliance that fought the Taliban and Al Qaeda, the majority of whom are Egyptians. Al Qaeda did not allow Afghans into their inner circles. Al Qaeda had pushed Sayyaf out of some of his camps. By the mid-1990’s they had developed real fighting skills and formed an effective unit to support the Taliban. The “055” Brigade was highly trained and well equipped in contrast to the amateurs who had previously come as would be mujahidin. The 055 Brigade fought the northern alliance including Sayyaf’s forces, until the US invasion in 2001. According to Williams, the authors of the public summary either didn’t know the history of this period or deliberately ignored it. The summary was not written by experts. He suspects that the authors went to Google with about two weeks notice and cobbled the material together.\n\nWilliams doesn’t accept the claim put forward by the Associated Press reporter, Kathy Gannon, in her book “I is for Infidel” of a meeting in which Sayyaf agreed to take part in the global jihad with Bin Laden and others. He knows and respects Ms Gannon but doesn’t consider the story plausible. He says it is similar to the conspiracy theories of Josef Bodansky. Sayyaf may have met Bin Laden upon the latter’s return to Afghanistan in 1996. But within a year he was fighting Al Qaeda and the Taliban.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-15", + "id": "fc-57473-154", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 27–28", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 367–369", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Mr. Ballesteros’ evidence, both before the criminal court in the Philippines and in his statutory declaration filed with the visa officer, was that force had been used against both the friend who had been stabbed and himself, and that all physical acts he took against Mr. Humiwat were undertaken for the purpose of defending himself and his friends from Mr. Humiwat and Mr. Balisi. While Ms. Garcia’s submissions in response to the fairness letter (filed by her former counsel) could have been clearer on the subject, both those submissions and Mr. Ballesteros’ statutory declaration raised the issue of self-defence, which was central to Mr. Ballesteros’ response to the allegation that he had committed a crime.\n\nTo assess whether an act constitutes an offence in Canada it is necessary to consider not only the elements of the offence but the applicable defences: Li v Canada (Minister of Citizenship and Immigration), [1997] 1 FC 235 (CA) at para 19. While Li was decided in the context of an equivalency assessment, discussed further below, in my view the principle applies equally whether the issue is equivalency or simply whether the acts constitute an offence in Canada. The Minister did not argue otherwise. Rather, the Minister argues that the visa officer effectively considered the issue of self-defence, since the Philippine prosecutor considered the self-defence argument and decided to nonetheless dismiss the co-accused’s motion for reconsideration and lay an information.", - "current_to": "2021-02-11", + "text": "Khattab (a kunya from the name of the 4th Caliph after the Prophet) was not part of Al Qaeda according to Williams. He says that position has been advanced by the Russian propagandist Joseph Bodansky. Bodansky’s book gives no sources and he has not been to Chechnya. Bodansky makes wild claims about events that are not plausible. His work is considered fiction by scholars. Bona fide intelligence services would not rely upon it.\n\nThe Saudi’s provided support to the Chechens Muslims and hundreds of Saudi citizens volunteered to go there to fight the Russians. Khattab was admired and viewed as a hero in Saudi Arabia and mourned when he died. This contrasts with Bin Laden who is despised. US didn’t have a stake in the Chechen jihad. Nor did they oppose it. The CIA did not define Khattab as a threat. Chechnya was not an autonomous republic and was seen by the Russians as part of their territory. They bitterly complained about the Saudi involvement.\n\nKhattab mocked the Russians by inviting captured soldiers’ mothers to come and get their boys. Williams does not believe that Khattab was involved in the Moscow bombings. It is counterintuitive, as the Chechens had already won their independence. He thinks that it was the work of Russian FSB agents seeking to procure a casus belli. Khattab didn’t approve of terrorism. He called those who practised it cowards.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-16", + "id": "fc-57473-155", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 29", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 370–372", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "I cannot accept the Minister’s arguments for a number of reasons. First and foremost, there is no indication in the GCMS notes that the visa officer materially considered the issue of self-defence or relied on the dismissal of the reconsideration motion as a basis for reaching a conclusion on self-defence. The only reference in the GCMS notes to the question of self-defence is the statement in the December 2018 notes that Mr. Ballesteros “states that the physical injuries sustained by the complainant was a result of the complainant and his friend’s attack on him and his friends.” Having summarized Mr. Ballesteros’s evidence in this way, the visa officer gave no further consideration to the issue of self-defence. As the Supreme Court noted in Vavilov, a decision maker’s reasons are the primary mechanism by which they communicate the rationale for their decision and show they have listened to the parties: Vavilov at paras 81, 84, 127. Absent any reference to the question of self-defence in the visa officer’s reasons, this Court should not make assumptions about the visa officer’s reasoning on that significant issue: Vavilov at paras 96, 128.", - "current_to": "2021-02-11", + "text": "“My Jihad” by Alkai Collins, an American who fought with Khattab says he relished frontal combat. He was a warrior; idolized for his style of fighting. The Chechen’s saw him as the sole source of help in their hour of need. But not everyone there loved him. He went against the Chechen government will by launching an incursion into Dagestan to defend three villages from a Russian onslaught. That gave the Russians a pretext for launching a full scale invasion of Chechnya and launched the second Chechnyan war.\n\nWilliams acknowledged that the material (exhibit A-1) produced for the hearing by government counsel is more professional and scholarly than what he calls the Wikipedia research in the summary. But apart from Bodansky's claims, there is nothing definitive about Khattab and Al Qaeda in the literature. Bin Laden's main target was Saudi Arabia. But the Saudis supported Khattab through the charities. Some of the Arabs who went to Chechnya broke from Khattab and joined Al Qaeda.\n\nDr. Williams discussed the civil war that developed in Tajikistan, after the fall of the Soviet Union. Members of the old communist guard, the “Red Khans”, continued to rule with an iron fist in a secular government. There was no democratic development as in the other former Soviet Republics. Democrats and Islamists and southern Tajiks launched a civil war. The Islamists called for support from Afghan Arabs saying the Soviets are still here. This was a continuation of the anti-Soviet, anti-communist jihad.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-17", + "id": "fc-57473-156", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 30–31", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 373–374", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Further, the visa officer is tasked with assessing whether there are reasonable grounds to believe that Mr. Ballesteros committed acts that would constitute an offence in Canada. As the Minister conceded in argument, the visa officer cannot simply delegate that decision-making to a foreign prosecutor. In any case, to the extent that the Philippine prosecutor considered that the defence of self-defence needed to go to trial, they did so in the context of Philippine law. The visa officer had to assess whether there were reasonable grounds that the acts would have constituted an offence in Canada, something the Philippine prosecutor did not address.\n\nIt is also important to note that the prosecutor’s decision on the reconsideration motion was only that there was sufficient evidence to lay charges against the co-accused. As the parties agree, evidence surrounding charges can be taken into consideration, but the charges themselves cannot be used as evidence of criminality: Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326 at para 50. While the visa officer was entitled to consider the evidence leading to the laying of charges, they could not rely on the mere decision to lay charges.", - "current_to": "2021-02-11", + "text": "In Afghanistan, the Arab mujahidin joined with those warlords who were trying to defeat the Communist government in Kabul. When the Najibullah government was overthrown, the war lords fought a civil war in Kabul and effectively destroyed the city. They all had blood on their hands for their actions during this period. Sayyaf was allied with Masood. Many of the Arabs were sickened by the internecine violence and left. Bin Laden went to Saudi Arabia and then to Sudan. Khattab went to Tajikistan. Others went to Kashmir to fight the Indians. The majority went home to brag about their exploits.\n\nThe “055 Brigade” was annihilated during the invasion in 2001. The survivors melted across the border into the Federally Administered Tribal Areas of Pakistan. To-day Al Qaeda Central is a more furtive, limited organization, hiding in the mountains. It lacks the capacity to launch attacks in Williams’ view. More dangerous to-day is “wannabe Al Qaeda’ism”. But there is a lack of evidence that they are being directed from Al Qaeda Central. Al Qaeda has few members remaining; less than 500. They are not splattered across the globe as in the quicksilver analogy posited by Dr. Rudner. There is no evidence of links to the disparate groups claiming to be modeled on Al Qaeda.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-18", + "id": "fc-57473-157", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 32–34", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 375–377", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Finally, the evidentiary record before the visa officer was very different from the evidentiary record before the Philippine prosecutor when the reconsideration motion was dismissed. In addition to Mr. Ballesteros’ further statutory declaration, the visa officer had the Affidavit of Desistance signed by Mr. Humiwat and the dismissal of the charges in the Philippines. This evidence is addressed further below, but the fact that the reconsideration motion was decided based on a different record further undermines the Minister’s argument that the visa officer implicitly assessed the self-defence issue through reliance on the reconsideration motion.\n\nGiven the availability of the defence of self-defence, and the importance of that defence to Mr. Ballesteros’ response to the criminal allegations, it was unreasonable for the visa officer not to have meaningfully addressed it before reaching a finding on admissibility.\n\nMs. Garcia also challenges the visa officer’s treatment of the evidence, particularly the evidence about who instigated the incident and the evidence related to the withdrawal of the charges. I agree with Ms. Garcia that the visa officer’s assessment of this evidence was unreasonable.", - "current_to": "2021-02-11", + "text": "Williams noted that there have been books written from actual experience in the mujahidin camps of the 80’s and 90s. Afghan Arabs went from camp to camp looking for one that suited them. The camps were in very primitive mud house compounds and the regime was very informal. There was a lot of shooting off of rifles and praying. The camps were full of dilettantes, adventurers, riff-raff. It was very ad hoc but incredibly weaponized. AK-47’s were a form of currency. John Walker Lindh, an American, walked into a camp and was given one. In contrast, Al Qaeda camps were very serious about security.\n\nThe witness described how the Beit-al-Ansar guest house in Peshawar was initially run by Sayyaf. It closed down in 1992 and was reopened in the late 1990s and run by Al Qaeda. If Almrei had been there in 1997 or later, it would be much more likely that he was Al Qaeda.\n\nThe guest houses were not training facilities. They were set up in residential areas and were more like a hotel. The tribal areas of Pakistan and Afghanistan do not have hotel chains. A series of guest houses facilitated the movement of men through the region. Williams had stayed in the one set up by Bin Laden in Kabul and in another in Bamiya. They were very primitive with no lights and no showers. Animals were kept downstairs. These were pre-existing guest houses that Bin Laden simply bought. He had bought a great deal of property in Afghanistan after 1996.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-19", + "id": "fc-57473-158", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 35–36", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 378–380", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "As reproduced above, the visa officer in the December 2018 GCMS notes briefly addressed the difference between Mr. Ballesteros’ and Mr. Humiwat’s evidence as to who instigated the attack. However, the visa officer’s only analysis of this evidence was that “based on the court documents on file including the medical cert of the complainant,” they were satisfied that Mr. Ballesteros had committed the act. The complainant’s medical certificate, not surprisingly, speaks only to Mr. Humiwat’s injuries, which are not in issue. In my view, it is unreasonable in the circumstances for the visa officer’s analysis of the conflicting evidence on a material issue to be limited to the broad statement that their conclusion was “based on the court documents.”\n\nThe court documents in question included medical evidence confirming that Mr. Ballesteros’ friend suffered multiple stab wounds, and that Mr. Balisi was charged (also with “frustrated homicide”) for that attack, each of which arguably corroborated Mr. Ballesteros’ evidence. It also included not only Mr. Ballesteros’ evidence but that of the other accused, which similarly corroborated the account. The visa officer did not discuss this exonerating evidence or the further evidence contained in Mr. Ballesteros’ statutory declaration, and gave no reason why they chose not to accept or rely on that evidence. Nor did the officer give any indication of why they remained satisfied in the face of this evidence that Mr. Humiwat’s initial complaint was enough to establish reasonable grounds to believe Mr. Ballesteros had committed a crime.", - "current_to": "2021-02-11", + "text": "During a break in the testimony, Dr. Williams and Almrei spoke briefly about this. Almrei apparently told him that he had stayed at Beit-al-Ansar. This was brought to my attention following the break by counsel for the Ministers and I cautioned the witness and Mr. Almrei not to speak with each other again. The matter was not pursued further and I do not believe that it influenced the testimony of either Dr. Williams or Mr. Almrei.\n\nWilliams found it impressive that the respondent can recite the Koran. It suggests he was raised in a good family. Al Qaeda members tend to be “born again Muslims”, more convinced and certain in their beliefs. They tend to be people who felt alienated from the society around them and began going to Mosques in their 20’s. Someone who had a good normal Islamic upbringing is unlikely to do this. This applies as well to the wannabe groups. They are concerned about Israel, angered at Saudis and learn to reject their parents’ guidance.\n\nOn cross-examination, Williams acknowledged that he had never been to Chechnya and doesn’t see himself as an expert on Chechnya. But he sees himself as qualified to give opinion evidence on the overlap between the jihadists who travelled from Afghanistan to Chechnya. He believes that someone could not be simultaneously a member of Al Qaeda and Khataab’s organization but knows of 5 people who left Khattab and joined Al Qaeda. He accepts that people who were in Sayyaf’s camps could have later joined Al Qaeda. To Williams, the facts that Almrei attended Sayyaf’s camp, was a follower of Khattab and did not go to Sudan are among the strongest indicators that he was not a member of Al Qaeda.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-20", + "id": "fc-57473-159", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 37", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 381–383", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Rather, the only consideration the visa officer addressed in any detail was the withdrawal of charges and associated Affidavit of Desistance. In the July 2019 GCMS notes, the visa officer discounted the Affidavit of Desistance because it was “common practice [in the Philippines] to settle cases outside of the court,” with an affidavit of desistance being part of the “workaround” if the parties are amenable to terms of settlement. However, as Ms. Garcia correctly points out, there was no evidence before the visa officer of there having been any settlement or terms of settlement associated with the affidavit. To the contrary, Mr. Ballesteros’ statutory declaration stated that “the reason why Joenard withdrew the charges against us and the case was dismissed” was that he realised that they had been the ones at fault. The situation is thus very different than that in Urdas, relied on by the Minister, in which there was evidence both that the dismissal of the complaint was the result of a settlement, and of the terms of that settlement: Urdas v Canada (Citizenship and Immigration), 2019 FC 131 at paras 15, 23, 27–28. While the Minister suggests that the visa officer did not conclude that a settlement occurred in this particular case, the only reason the visa officer’s discussion of settlements would have any relevance to the evidence before them would be if they reached such a conclusion.", - "current_to": "2021-02-11", + "text": "Williams agreed that Sayyaf engages in bombastic anti-western rhetoric. He says that all of the Afghan leaders ranted and raved about western intervention and used the same language. He was taken to a series of articles and book chapters which tended to suggest that Sayyaf and Bin Laden were close during the anti-Soviet jihad and the subsequent civil war. Bin Laden had attempted to achieve a reconciliation between the Pashtun warlord Hekmatyar (now allied with the Taliban) and the Tajik leader Massood. Massood and Dostum seized control of Kabul after the fall of Najibullah and Massood became defence minister. Williams sees Bin Laden’s efforts at this time as an exercise in pragmatism.\n\nThere were running battles in the streets of Kabul in 1993 between Hekmatyar’s, Sayyaf’s, Dostum’s and Massood’s forces in the midst of the civilians. Atrocities were committed. None of them were guiltless. Sayyaf is likely guilty of war crimes for the actions of his militia against the minority Shi’ite Hazzara community.\n\nExhibit A-28 is an excerpt from “Architect of Global Jihad” by Brynjar Lia, a book on the life of Abu Mus’ab al-Suri, jihadi thinker and Al Qaeda strategist. At page 82 is a reference to training in the Sada camp by al-Suri, and Khalid Sheikh Mohammed. The author states that the camp had been established with the help of Azzam and Sayyaf but was only used by the nascent Al Qaeda to a limited extent for “limited duration recruits”. In Williams view, these people were not Al Qaeda at the time. The training of the Arabs was very perfunctual. It was considered more of a burden by the hardened Afghan veterans. Some of the Arabs came more as tourists during spring break or summer vacation; jihad was cool for young Arab males.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-21", + "id": "fc-57473-160", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 38–40", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 384–387", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Without any further evidence or rationale, it was unreasonable for the visa officer to speculate or assume that the Affidavit of Desistance was filed as a term of settlement and to discount its contents as a result. This is particularly so where the assumption (a) directly contradicts Mr. Ballesteros’ evidence regarding the reason for the withdrawal, and (b) implies that the sworn evidence in the Affidavit of Desistance was untrue. In the Affidavit of Desistance, Mr. Humiwat stated that Mr. Ballesteros had no intention to injure him, and that his evidence would “completely exonerate” Mr. Ballesteros and the other accused from any criminal liability. The visa officer effectively concluded that this evidence was not to be accepted based on their speculation that it was filed as part of a settlement.\n\nThis is significant given that the only evidence that Mr. Ballesteros committed acts that constitute assault causing bodily harm (as opposed to acts of self-defence) came from Mr. Humiwat’s earlier statement, which he effectively withdrew through the Affidavit of Desistance. Without further analysis, it was unreasonable for the visa officer to conclude, in essence, that Mr. Ballesteros was not to be believed and that Mr. Humiwat’s earlier statement gave rise to reasonable grounds to believe that the crime was committed notwithstanding his sworn withdrawal of material aspects of that statement.\n\nIn this regard, Ms. Garcia points to the conclusion in Arevalo Pineda that the dismissal of charges is prima facie evidence the crimes were not committed: Arevalo Pineda at para 31. The Minister agrees with this principle, but argues that this presumption can be rebutted based on the evidence and facts of the case.", - "current_to": "2021-02-11", + "text": "According to the author Jason Burke (Ex. A-2, tab 5), Ramzi Yusef, nephew of KSM, spent some time as a tutor in Sayyaf’s Khaldan camp where he met Ahmed Ajaj, his accomplice in the 1993 WTC bombing. The work includes references to Sayyaf’s “University” in Pabbi, near Peshawar, and alleged involvement in an attempt to kill Benazir Bhutto. Sayyaf’s compound in Pabbi was searched by the Pakistani authorities following the 1995 attempt on President Mubarak in Ethiopia. Williams says this was not an Al Qaeda action.\n\nWilliams agrees that unsavoury people who passed through Sayyaf camps in the 1990’s were later engaged in terrorism but considers that Al Qaeda was at that time a separate operation. He agrees that an association with Sayyaf does not preclude a linkage with terrorism but holds to the view that being in Sayyaf’s camps while Bin Laden was in Sudan is a contra-indication.\n\nUS Department of State reports on Afghanistan for 1994 and 1995 were entered in evidence (tabs 11 and 12 of Ex. A-2). Williams did not doubt the statements in these reports that the Afghan camps, including those run by Sayyaf continue to harbour and train militants and potential terrorists.\n\nA compilation of Dr. Williams’ publications was entered as Exhibit A-30 and he was cross-examined closely on prior statements he had made in his writings about events and personages in the region. In one assessment of the role of foreign fighters in the Chechen insurgency, for example, he had written that the Arabs who went there perceived themselves as holy warriors and were not engaged in a sectarian or nationalist struggle. He describes them as having “radicalized’ members of the Chechen armed forces. He didn’t see this as having had a good effect on Chechnya.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-22", + "id": "fc-57473-161", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 41", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 388–390", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In this regard, I believe the approach taken in Red v Canada (Citizenship and Immigration), 2018 FC 1271, another case involving an affidavit of desistance as part of a withdrawal of charges in the Philippines, is instructive. At paragraph 28 of that decision, Justice Walker noted the following: The Affidavit of Desistance and the Order of the Trial Court are unequivocal. The elements of an offence under BPB 22 could not be established on the basis of the Applicant’s actions. The complainant, AsiaLink, swears in the Affidavit that its understanding of the facts was incorrect such that the prosecution of the case could not be successful. The Trial Court accepted the Affidavit of Desistance and withdrew the charge. I recognize that section 33 of the IRPA requires only that an officer have reasonable grounds to believe that an offence was committed by the Applicant outside of Canada. However, in light of the evidence in the record to the contrary, the Officer was required to explain in some detail the conclusion that an offence was committed. The Officer’s statement in the GCMS notes that the Applicant could not explain AsiaLink’s misunderstanding is not a sufficient explanation. [Emphasis added.]", - "current_to": "2021-02-11", + "text": "Williams says he believes that Khattab’s world view was transnational i.e., not bound by borders, as evidenced by his invasion of Dagestan. The President of Chechnya was opposed to this because of the provocation it would give the Russians. Khattab saw this as defensive jihad. But it is more a form of offensive jihad because it was an external invasion. Williams believes it was a clever ploy on the part of the Russians for having lured Khattab into invading; they did so by levelling the villages close to his local family.\n\nKhattab’s tactics were guerrilla operations. Williams does not agree that Khattab engaged in terrorist acts during that period. He concedes the point that Khattab’s activities would have been construed as terrorist by the Russians. But only the Russians, themselves guilty of state sponsored terrorism in Chechnya, call Khattab a terrorist. The Chechen leader Basayef had engaged in terrorism and there is a blurring of the lines between the two.\n\nWilliams testified that he looked long and hard for links to establish operational ties between Khattab and Al Qaeda. He says that foot soldiers who tired of frontal combat and wanted something more glorious and dynamic and those who wanted to wage war against America had to join a different organization. Khattab had a different enemy – Russia. Khattab’s website was focused on the military activity against Russia. In contrast, Al Qaeda’s website glorified the murder of Americans and Jews. Williams disputes reports that Khattab and Bin Laden fought together. He says they may have been in a major battle against the Russians at Jalalabad with all of the other Afghan Arabs. Khattab wasn’t with Bin Laden at Jagi which was the only battle that Bin Laden led.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-23", + "id": "fc-57473-162", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 42", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 391–392", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", - "division": "", - "text": "The Minister relies on the subsequent decision in Urdas, in which Chief Justice Crampton upheld an inadmissibility finding despite the withdrawal of charges and an affidavit of desistance. Importantly, the officer’s decision in that case relied on various findings and facts, including Mr. Urdas’ own contradictory statements regarding the settlement of the charges, the fact that the complainant’s affidavit of desistance did not say Mr. Urdas did not commit the offence, and the presence of multiple witnesses in addition to the complainant: Urdas at paras 23–26. The Chief Justice distinguished Red on the basis that the affidavit of desistance in Red stated that there had been a “misaccounting and a misapprehension of facts,” whereas that in Urdas simply stated that the complainant was no longer certain the accused were the ones who stabbed them: Urdas at paras 25–26. The Chief Justice underscored that the dismissal of the charges required the officer to “exercise caution” and be satisfied that there were nonetheless reasonable grounds for the inadmissibility finding: Urdas at para 38. However, given the officer’s factual findings, it was reasonably open to them to reach such a conclusion in that case: Urdas at paras 38–39.", - "current_to": "2021-02-11", + "division": "", + "text": "Bin Laden financed the jihad in Chechnya but didn’t personally join it. His number one concern was Saudi Arabia and the US. The US because it supports the Saudi regime. Khattab was supported by the Saudi dynasty. Members of the Royal Family contributed money to al Haramain. Khattab set up an office with al Haramain to equip his forces. Williams agrees that some al Haramain offices also supported Al Qaeda. But the Saudi’s arrested one of their own people for this. The Chief Mufti of Saudi Arabia spoke out in favour of the Chechnyan jihad. The Royal Family mourned his death. They revile Bin Laden. It is permissible to admire Khattab in Saudi Arabia but Bin Laden is considered a threat to the state.\n\nWilliams agrees that Khattab shared Bin Laden’s view that infidels should be driven out of Muslim lands and supported the attacks on US military personnel in Saudi Arabia. He did not condemn Bin Laden in quotes attributed to him in the late 1990s (e.g., Ex.A-31). Khattab would have subscribed to the conspiracy theories about US intentions that were then prevalent in the Muslim world. Williams does not think that Khattab would have condemned another jihadi but condemned terrorism against civilians. He probably agreed with much of what Bin Laden was doing or may have believed that his Saudi funding would have dried up if he had condemned him at that time. But Khattab condemned terrorism against civilians and the Americans never saw Khattab as a threat.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-24", + "id": "fc-57473-163", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 43", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 393–394", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In both Red and Urdas, the issue was whether the officer had reasonably assessed the evidence, including the affidavits of desistance. In Red, the Court concluded that given the affidavit of desistance, the officer needed to provide a greater explanation of the conclusion that an offence had been committed. In Urdas the officer did provide an adequate explanation and assessment of the evidence. Both cases therefore apply the same approach, which is consistent with Arevalo Pineda, namely that the withdrawal of charges is important, but not determinative, and that a reasonable decision must explain why the evidence supports a conclusion of inadmissibility despite the dismissal of charges and any affidavit withdrawing allegations. Ultimately, the question under paragraph 36(1)(c) remains whether there are objectively reasonable grounds to believe, based on compelling and credible information, that acts were committed which constitute an offence falling within that provision: Mugesera at para 114. The withdrawal of charges associated with the acts in the foreign jurisdiction is relevant evidence suggesting an offence may not have been committed, but it is not determinative.", - "current_to": "2021-02-11", + "text": "Williams held to his view on cross-examination that there were two streams of jihad. One was led by Abdullah Azzam who held to a clear line against terrorism and killing fellow Muslims. He sought the creation of a rapid reaction team, the Azzam Brigades, to attack non-Muslims fighting Muslims. The other stream was led by the Egyptians, notably al Zawahir who wanted to attack Muslims and use terror as a tactic. Azzam was not close to the Egyptian extremists. He had taught at al Azhar University in Cairo and could not have held that position if he had been viewed as a threat by the Egyptian Government. He worked with that government to obtain weapons for the jihad in Afghanistan. Azzam did not want fitna or dissension within the Islamic community, contrary to Bin Laden.\n\nOn re-direct, Williams clarified that Sayyaf’s training camps south of Jalalabad were taken over by Al Qaeda about 1998. Sayyaf continued to control territory north of that city. During the anti-Soviet jihad, all of the Afghan Arabs would have gone through either Hekmatyar’s camps or Sayyaf’s camps. Of the tens of thousands, almost all went back home and are living normal lives. Only a small number went on to become Al Qaeda. Similarly, some of those who went to the Chechen camps went on to join Al Qaeda. He has identified about 10 who did so and is surprised there is not more. He suspects it is because Khattab trained his warriors not to engage in terrorism. ANALYSIS Are the factual allegations against Almrei supported by the information and other evidence?", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-25", + "id": "fc-57473-164", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 44–45", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 395–396", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Here, the visa officer appears to recognize that their role was to “thoroughly review the circumstances that led to the filing of the charge,” including the evidence submitted. However, despite this statement, in my assessment they did not undertake such a thorough review. As a result, neither Ms. Garcia nor the Court are able to assess why the visa officer accepted that Mr. Humiwat’s original evidence remained sufficiently credible and compelling to conclude there were reasonable grounds to believe Mr. Ballesteros had committed acts that would be an offence in Canada, despite the witness having stated that their evidence would exonerate Mr. Ballesteros, and despite Mr. Ballesteros’ direct evidence to the contrary. Without such an assessment of the evidence, the decision lacks the justification, transparency, and intelligibility of a reasonable decision: Vavilov at paras 86, 99, 133.\n\nMs. Garcia also argues that the visa officer’s decision was unreasonable because it failed to conduct an “equivalency” analysis between the Philippine and Canadian offences in accordance with the Federal Court of Appeal’s decision in Hill v Canada (Minister of Employment and Immigration), [1987] FCJ No 47, 1 Imm LR (2d) 1 (CA). While I need not determine this argument given my conclusions above, I believe it worth discussion in light of the parties’ arguments on the issue.", - "current_to": "2021-02-11", + "text": "In their closing submissions, the Ministers argue that the foundation for findings that Almrei is inadmissible to Canada on national security grounds and that the certificate is reasonable rests on the following alleged facts: Almrei’s participation in jihad; his connections to others affiliated with Osama Bin Laden and his network, and with whom, they contend, he shares an extremist ideology; and his participation in an international document procurement network.\n\nThe Ministers submit that, prior to arriving in Canada, Almrei engaged in terrorism by supporting terrorist activity and concealed from Canadian authorities the fact that he had supported Islamic extremists and had traveled to Pakistan, Afghanistan and Tajikistan to do so. They claim that he supported terrorist activity as a member of the terrorist group known as the Bin Laden network, which includes Al Qaeda. His international contacts and fraudulent document procurement and willingness to assist with such document procurement, including for an individual associated with the Bin Laden network, make him a danger to the security of Canada in the Ministers' opinion.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-26", + "id": "fc-57473-165", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 46–47", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 397–399", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In Hill, the Federal Court of Appeal set out three ways in which an officer may conduct an “equivalency” analysis to determine whether a foreign offence “would constitute an offence” in Canada: (i) by comparing the precise wording in each statute to determine the essential ingredients of the respective offences; (ii) by examining the evidence adduced before the adjudicator to ascertain whether the evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings; or (iii) a combination of (i) and (ii).\n\nIn the present case, the visa officer did not undertake a comparison between the essential elements of the “frustrated homicide” offence with which Mr. Ballesteros was charged in the Philippines and the assault causing bodily harm offence in Canada. Ms. Garcia argues that an officer must at least describe the constituent elements of the Canadian and foreign offences, with reference to applicable provisions: Nshogoza v Canada (Citizenship and Immigration), 2015 FC 1211 at paras 27–31. Relying on Justice Diner’s decision in Liberal, she argues that mere reference to the provisions followed by a brief statement regarding their equivalence is not a reasonable analysis: Liberal v Canada (Citizenship and Immigration), 2017 FC 173 at paras 28–32.", - "current_to": "2021-02-11", + "text": "The specific facts relied upon by the Ministers in support of these submissions include Almrei's belief in jihad, his trips to Afghanistan and Tajikistan to engage in jihad and his willingness to fight and, if necessary, to die to defend Muslims. His association with Sayyaf and Khattab is said to be an indication that he shares a positive view of Bin Laden and a belief in militant Salafism. Almrei’s admission that he met Nabil Almarabh in Kunduz, Afghanistan, a suspected terrorist, and later provided him with a false Canadian passport, gives rise, in the Ministers’ submission, to a reasonable belief that Almrei could provide material support to a terrorist, in Canada or elsewhere.\n\nTo organize my comments and findings about the information and evidence I will follow the arrangement of the Amended Public Summary of the SIR filed on March 24, 2009. The closed information and evidence has been taken into consideration. Osama Bin Laden, Al Qaeda and the “Bin Laden Network”\n\nMuch of the information and other evidence presented to the Court concerned Osama Bin Laden, Al Qaeda and the “Bin Laden Network”. This was offered in support of the allegation that the respondent is a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism, as set out in s.34 of the Act. The Amended Public Summary devotes 36 paragraphs and 83 footnotes to establishing the existence of this organization and its linkage to terrorism.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-27", + "id": "fc-57473-166", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 48–50", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 400–401", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In my view, it is relevant to note that Hill, Nshogoza and Liberal, as well as the cases they rely on, were decided in the context of paragraph 36(1)(b) of the IRPA or its predecessor, as the applicant in each case had been convicted of a foreign offence: Nshogoza at para 1; Liberal at para 1; see also Li at paras 2–3; Brannson v Canada (Minister of Employment and Immigration), [1981] 2 FC 141 (CA) at pp 142–143; Kathirgamathamby v Canada (Citizenship and Immigration), 2013 FC 811 at paras 1, 24.\n\nAs set out above, paragraph 36(1)(b) is triggered where a party has been convicted of an offence outside Canada that, if committed here, would be an offence punishable by a maximum term of imprisonment of at least 10 years. This requires an assessment of whether the offence of which the individual was convicted outside Canada would also constitute an offence in Canada. This engages the equivalency question addressed in Hill.\n\nThe analysis under paragraph 36(1)(c) of the IRPA, however, pertains not to a conviction outside Canada or even a charge, but to an act committed by the individual. The paragraph has two requirements. First, the act must be “an offence” where it was committed. Second, the act must constitute an offence punishable by a maximum term of imprisonment of at least 10 years, if it were committed in Canada. Unlike paragraph 36(1)(b), the paragraph does not on its face require that there be any equivalence between the offences in the two jurisdictions; simply that the act be “an offence” where it was committed, and constitute “an offence” with a particular punishment in Canada.", - "current_to": "2021-02-11", + "text": "The status of Al Qaeda as an organization within the meaning of paragraph 34 (1) (f) of the Act was not in any doubt in these proceedings. However, there is no evidence that Almrei is or ever has been a member of Al Qaeda. Thus, the Ministers' case under that ground of inadmissibility rests on the proposition that Almrei is a member of the more amorphous notion of a “network” inspired and led by Bin Laden that engages in terrorism. The respondent disputes that such an organization exists or that those who are said to be members can be held accountable for the actions of other individuals operating independently.\n\nThe concept of a “network” does not easily satisfy criteria such as those that Justice O'Reilly identified in Thanaratnam, above, at paragraph 31: “identity, leadership, a loose hierarchy and a basic organizational structure”. These factors undoubtedly apply to Al Qaeda itself but are less readily apparent the farther removed from Al Qaeda is the group or individual said to be associated with the network. I note that the \"Bin Laden network\" is not a proscribed entity, unlike Al Qaeda, in the lists of terrorist organizations maintained by Canada, the United Nations or the United States (Reference Index Vol.1, T-12, T-13, T-14).", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-28", + "id": "fc-57473-167", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 51–52", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 402–403", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "This difference has led this Court to question the applicability of the equivalency analysis to paragraph 36(1)(c): Victor v Canada (Public Safety and Emergency Preparedness), 2013 FC 979 at paras 35–37; Nguesso v Canada (Citizenship and Immigration), 2015 FC 879 at paras 208–210. Nonetheless, this Court has also held in a number of cases that paragraph 36(1)(c) does trigger the Hill equivalency analysis: Pardhan v Canada (Citizenship and Immigration), 2007 FC 756 at paras 9–10; Somal v Canada (Citizenship and Immigration), 2014 FC 891 at para 19; Singh v Canada (Citizenship and Immigration), 2019 FC 946 at paras 16–17; Cruz v Canada (Citizenship and Immigration), 2020 FC 455 at paras 42–43.\n\nIn my view, the reasoning in Victor and Nguesso regarding the applicability of the Hill equivalency analysis to paragraph 36(1)(c) is persuasive. In any event, as Justice Roy noted in Victor, Hill sets out three alternative methods that may be used in the analysis, and to the extent that the Hill analysis may be necessary under paragraph 36(1)(c), the second Hill method seems “particularly advisable”: Victor at para 45. To this, I would add the observation that if applying the second Hill method in the context of paragraph 36(1)(c), the evidence in question may not have been “adduced before the adjudicator” or “proven in the foreign proceedings,” since no conviction is necessary under the section.", - "current_to": "2021-02-11", + "text": "There is a consensus among the experts that a number of organizations are now affiliated with Al Qaeda and others draw their inspiration from Bin Laden. Mr. Quiggin estimated that there were six affiliated groups and about 23 others who have expressed an ideology sympathetic to that of Al Qaeda. These groups, he says, are focused primarily on local and regional issues. But these groups would themselves qualify under the rubric of organizations that engage in terrorism and membership renders the individual inadmissible. There is no evidence that Almrei is a member of any of the affiliated groups. At best, the Ministers assert that he is part of a loosely connected matrix of jihadi veterans with shared experiences in Afghanistan.\n\nThe home-grown “wannabes” are not recruited, financed or directed by Al Qaeda but have adopted a similar world view. Examples given by the witnesses include those responsible for the Madrid bombings, the \"Operation Crevice\" conspirators in the United Kingdom, Momim Khawaja and the so-called \"Toronto 18\" in Canada. These persons are unquestionably a threat to national security and public safety but they have no direct connection to Al Qaeda and it is doubtful, in my view, that they can be said to be part of the same terrorist organization within the meaning of paragraph 34(1)(f).", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-29", + "id": "fc-57473-168", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 53–55", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 404–406", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The Minister argues that the visa officer did undertake an adequate examination of whether the essential elements of the Canadian offence had been established on the evidence, and thereby followed the second Hill method. While I have concluded above that the visa officer’s analysis of the evidence and the elements was not reasonable, I cannot conclude that the decision was also unreasonable because it failed to adequately assess equivalency between the Philippine offence for which Mr. Ballesteros was charged and the Canadian offence of assault causing bodily harm.\n\nMs. Garcia argues that in addition to being unreasonable, it was unfair for the visa officer to rely on the “common practice to settle cases outside of the court” as a reason to discount the Affidavit of Desistance. She argues the visa officer apparently relied on extrinsic sources regarding the workings of the criminal system in the Philippines without putting that information or those issues to Ms. Garcia to allow her to respond with submissions or evidence. The Minister argues that Ms. Garcia was given the opportunity to address the overall criminality finding through the issuance of the procedural fairness letter, and that the visa officer is entitled to rely on specialized localized information regarding the country in which they work: Habte v Canada (Citizenship and Immigration), 2019 FC 327 at paras 23, 32, 35.\n\nWhile the duty of procedural fairness owed by visa officers generally tends to be at the lower end of the spectrum, this Court has recognized that decisions that involve inadmissibility invoke a greater degree of procedural fairness: Nguesso at paras 65–66. In my view, the officer did not meet the duty of fairness in this case.", - "current_to": "2021-02-11", + "text": "As I understand the Ministers' position, anyone who shares the principles of Al Qaeda and is in some way linked to it is a member of the Bin Laden network. Applying the “unrestricted and broad” interpretation approved by the Court of Appeal in Sittampalam, I accept that Al Qaeda and its affiliated groups can be termed an organization within the meaning of paragraph 34(1)(f). This \"Bin Laden network\" may also encompass those groups that are inspired by and willing to take direction from Bin Laden but are not formally affiliated with Al Qaeda: Re Iklef, 2002 FCT 263 at para.54.\n\nIndividuals and groups who have no connection with Al Qaeda cannot be said to be part of the network without some other indicia of membership such as a willingness to follow directions from Bin Laden. It is not enough, in my view, to assert membership in an organization merely on the basis of a shared ideology. That is what I believe the Ministers have been attempting to do in this case. They can’t establish that Almrei is a member of Al Qaeda or an affiliated organization and have attempted to bring him within the scope of this amorphous concept of a network based on his belief and participation in jihad.\n\nAn \"unrestricted and broad\" interpretation of organization does not encompass those who have expressed views that are sympathetic to the ideology of Bin Laden and Al Qaeda and approval of the actions that they have taken. That is far too broad a net to cast and would be incompatible with the freedom of expression guaranteed by our Charter. There has to be something more to demonstrate that a person who has expressed those views has taken steps to associate himself with the network and to act in accordance with its objectives.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-30", + "id": "fc-57473-169", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 56–57", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 407–408", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "While a visa officer’s expertise and knowledge is central to their decision making, this does not resolve the issue of whether a visa officer has an obligation in a particular case to raise an aspect of that specialized knowledge before rendering a decision based on it. This Court has recognized that the rules of procedural fairness require that in some instances, such information or evidence must be disclosed: Al Hasan v Canada (Citizenship and Immigration), 2019 FC 1155 at paras 10–11; Nguyen v Canada (Citizenship and Immigration), 2019 FC 439 at para 28. The issue is whether “meaningful facts essential or potentially crucial to the decision” were relied upon without the applicant having been given an opportunity to comment on them: Nguyen at para 28, quoting Yang v Canada (Minister of Citizenship and Immigration), 2013 FC 20 at para 17.\n\nIn the present case, it is clear that the role of settlement and affidavits of desistance in the Philippine criminal justice system was a matter “essential or potentially crucial” to the visa officer’s decision. Indeed, it was the material focus of their analysis of Mr. Ballesteros’ admissibility. Yet neither the visa officer’s understanding that “it is common practice to settle cases” because of the lengthy trial process, nor their understanding that affidavits of desistance are simply a “workaround” arising from the terms of settlement was put to Ms. Garcia for comment in the fairness letter. In my view, it was unfair for the officer to rely on this information in this context, particularly where there was no evidence of a settlement, and where the visa officer’s understanding or information directly contradicted Mr. Ballesteros’ evidence that the withdrawal arose from Mr. Humiwat’s realization that he was at fault.", - "current_to": "2021-02-11", + "text": "I don’t doubt, as the Ministers assert, that Al Qaeda remains committed to the use of terrorism to achieve its political goals but it is a matter of controversy between the experts whether Bin Laden retains the “resources and organization to launch a terrorist strike in any country he wishes” as stated in paragraph 9 of the summary. The source given for this proposition is a January 1999 report from a non-authoritative, and now stale, online source. While that may have been true in 1999, it is questionable to-day.\n\nIn a paragraph added to bolster the Ministers' case following Mr. Quiggin's testimony during the detention review hearings it is stated that: Some scholars and academics believe that Al Qaeda is no longer a centrally controlled organization, but recognize that its ideology lives on and that Osama bin Laden remains a powerful figurehead and inspiration for people around the world. Still others believe that Al Qaeda remains a viable entity and may be regrouping in order to spark a new wave of attacks. Yemen has been identified as a possible new home for Al Qaeda, with Saudi and Yemeni militants joining forces. (Paragraph 13)", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-492842-31", + "id": "fc-57473-170", "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 58–59", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 409–411", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The application for judicial review is therefore allowed, and Ms. Garcia’s application is referred back to a different officer for redetermination.\n\nNeither party proposed a question for certification. I agree that none arises. JUDGMENT IN IMM-5235-19 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The visa officer’s decision is set aside and Ms. Garcia’s application for permanent residence is returned for re-determination by a different officer. “Nicholas McHaffie” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5235-19 STYLE OF CAUSE: LOREBETH GARCIA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION HEARING HELD BY VIDEOCONFERENCE ON SEPTEMBER 9, 2020 FROM OTTAWA, ONTARIO (COURT) AND CALGARY, ALBERTA (PARTIES) JUDGMENT AND REASONS: MCHAFFIE J. DATED: February 11, 2021 APPEARANCES: Sania Chaudhry For The Applicant Meenu Ahluwalia For The Respondent SOLICITORS OF RECORD: Stewart Sharma Harsanyi Barristers and Solicitors Calgary, Alberta For The ApplicantS Attorney General of Canada Calgary, Alberta For The Respondent", - "current_to": "2021-02-11", + "text": "The paragraph alludes to a debate between two renowned American experts on Al Qaeda and terrorism: Prof. Bruce Hoffman and Dr. Marc Sageman. Excerpts of their writings were filed in evidence including articles from the issues of the Foreign Affairs magazine in which they exchanged their views (Ex. A-5). Hoffman is a professor at Georgetown University and the author of Inside Terrorism. Sageman is a former CIA field operative turned psychiatrist and the author of Understanding Terror Networks and a 2008 work entitled Leaderless Jihad. It was the publication of that book which led to the debate with Hoffman. Dr. Williams described Dr. Sageman as the foremost terrorist profiler in the world and a mentor to him in understanding what attracts recruits to extremist organizations.\n\nIn essence, the controversy is over the question of whether the West continues to face a grave threat from Al Qaeda or whether the true menace comes from loose knit cells of Western born Muslims or Muslim immigrants studying and working in the West; what Sageman calls disaffected \"bunches of guys\" who undergo the process of radicalization together.\n\nHoffman maintains that “Al Qaeda Central” or \"core Al Qaeda\" as the witnesses variously described it, continues to be a major threat (Ex. A-5, Hoffman, “The Myth of Grass-Roots Terrorism”, Foreign Affairs, May/June 2008). Sageman, in rejoinder, says he has never denied that Al Qaeda remains a threat but asserts that it has been contained operationally (Foreign Affairs, July/August 2008). High level Al Qaeda personalities have been killed or captured and the remnants have been forced into remote tribal areas of Pakistan adjoining Afghanistan.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-1", + "id": "fc-57473-171", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 1–4", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 412–414", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The applicant is a citizen and resident of India. In or around late May 2019, she applied to the Migration Section of the Consulate General of Canada in Chandigarh, India, for a Temporary Resident Visa [TRV] so that she could visit her daughter in Canada. In a decision dated August 16, 2019, a visa officer refused the application because the applicant had not established that she would leave Canada at the end of her authorized stay and because she had misrepresented information in her TRV application. As a result of the finding of misrepresentation, the applicant is inadmissible to Canada for five years under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].\n\nThe applicant has applied for judicial review of this decision on the basis that it was made in breach of the requirements of procedural fairness.\n\nThe applicant originally asked that the officer’s decision be set aside and that the matter be remitted to another decision maker for a redetermination of the TRV application. However, the timeframe for the applicant’s proposed trip to Canada is long passed. At the hearing of this application, the applicant’s counsel acknowledged that the main concern was the misrepresentation determination and the five-year period of inadmissibility it entails.\n\nFor the reasons that follow, I agree with the applicant that the decision was made in breach of the requirements of procedural fairness. This application will therefore be allowed and the August 16, 2019, decision (including the finding of misrepresentation) will be set aside. No other relief is requested or necessary.", - "current_to": "2020-08-04", + "text": "Dr. Williams and Mr. Quiggin share the view that core Al Qaeda has been greatly weakened and no longer has the same power, resources or capacity to train it had when it was a state within a state under the Taliban. Mr. Young and Dr. Rudner believe that Al Qaeda Central retains a significant operational capacity.\n\nWhile the experts may disagree about the nature of the security threat and how it can be managed, it is clear from the evidence that their knowledge and understanding of the risk has evolved considerably since 2001. This was not reflected in the SIR and public summary until after Mr. Quiggin was called as a witness in the detention review proceedings and questioned the Service’s assessment and the sources on which it was based. I found it troubling that the work done to prepare the new SIR in 2008 had not kept pace with developments in the field. And the sources relied upon by the Service were often non-authoritative, misleading or inaccurate.\n\nThe Ministers dismissed this concern as an inevitable consequence of the preparation of a narrative report with supporting documentation of varying degrees of persuasiveness (Ministers' reply submissions para. 16). While it is true that some information will prove to be merely unpersuasive, that does not absolve the Ministers and the Service from fairly presenting the information in their possession.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-2", + "id": "fc-57473-172", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 5–8", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 415", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The applicant applied in or around late May 2019 for a TRV to permit her to visit her daughter in Canada between June 15 and 30, 2019. The applicant’s daughter is a permanent resident of Canada who lives in Saint-Laurent, Quebec. The applicant’s mother (who is also a citizen of India) wished to make the trip as well and was included on the TRV application.\n\nOn June 28, 2019, the Migration Section of the Canadian Consulate in Chandigarh sent an email to the applicant’s daughter’s email address. (That address had been given as the applicant’s contact email on the TRV application.) The subject line of the email indicated “PFL for Swaranjit Kaur.” (“PFL” is a commonly used acronym for “Procedural Fairness Letter.”) The body of the email stated: “An important communication (attached) regarding your application is being sent to you.”\n\nThe Certified Tribunal Record [CTR] prepared for this application for judicial review by the Consulate General of Canada in Chandigarh does not include a copy of a procedural fairness letter dated on or around June 28, 2019, nor does it include any notes from the Global Case Management System [GCMS] pertaining to any such letter. The GCMS notes simply indicate that on June 28, 2019, a procedural fairness letter was sent to the applicant’s daughter’s email address.\n\nAt some point (the date is not provided in the record on this application), the applicant’s daughter sent a communication to Immigration, Refugees and Citizenship Canada [IRCC] stating that she had received the June 28, 2019, email from the Migration Section but there was no attachment. It appears that this message to IRCC reached the Canadian Consulate in Chandigarh on July 25, 2019.", - "current_to": "2020-08-04", + "text": "As discussed above, the summary cites a news article reporting on Lord Carlisle’s Fourth Report to the UK Parliament for the proposition that terror suspects under house arrest have been able to maintain contact with terrorist organizations or individuals and remain determined to mount attacks in the future. The full passage which appears at paragraph 58 of the report reads as follows: My view is that it is only in a few cases that control orders can be justified for more than two years. After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted. The terrorist will know that the authorities will retain an interest in his or her activities and contacts, and will be likely to scrutinize them in the future. For those organizing terrorism, a person who has been subject to a control order for up to two years is an unattractive operator, who may be assumed to have the eyes and ears of the State upon him/her. Nevertheless, the material I have seen justifies the conclusion there are a few controlees who, despite the restrictions placed upon them, manage to maintain some contact with terrorist associates and/or groups, and a determination to become operational in the future. [My emphasis] Fourth Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005; Lord Carlisle of Berriew Q.C. wrote at paragraph 58:", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-3", + "id": "fc-57473-173", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 9–14", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 416–418", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The GCMS notes indicate that the procedural fairness letter was “resent” on July 25, 2019. A letter of that date is included in the record.\n\nIn this letter, an unidentified officer notes that under subsection 16(1) of the IRPA, a person who makes an application “must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.” The officer then states that they were concerned with the authenticity of the following, which you have provided in support of your application: On the current application form, you have not declared being unlawfully present for 365 days or more within 10 years in the United States. According to information in our records, you were unlawfully present for 365 days or more within 10 years in the United States.\n\nThis “information” concerning the applicant’s alleged unlawful presence in the United States is not otherwise described in the letter. There is nothing in the CTR to indicate what gave rise to this allegation.\n\nThe officer invited the applicant to respond to the information set out in the July 25, 2019, letter. If no response was received by the deadline specified in the letter (August 9, 2019), the application for a TRV would be refused.\n\nThe officer also noted that if it is found that the applicant “engaged in misrepresentation” in submitting her TRV application, she may be found inadmissible under paragraph 40(1)(a) of the IRPA. Such a finding would render her inadmissible to Canada for a period of five years.\n\nWith her daughter’s assistance, the applicant retained a Canadian lawyer in Montreal (not Mr. Chalk) to represent her in providing a response to the July 25, 2019, letter.", - "current_to": "2020-08-04", + "text": "The thrust of the actual reference was that most terrorist operatives lose their utility to those who may be interested in making use of their services when they have been under the control of the authorities for an extended period of time. A few will continue to present a risk. This was a finding relevant to this case given the length of Almrei’s detention. It was not fairly presented in the Public Summary.\n\nIn the same paragraph of the Public Summary (14), it is noted that one prominent Al Qaeda militant who had undergone a stringent Saudi rehabilitation program and was released from custody has recently emerged as a key leader of Al Qaeda. This is accurate, but ignores the fact that Saudi Arabia has reported a high degree of success with this program and that other countries had taken steps to emulate it. The purpose of including this statement in the summary, presumably, was to dissuade the Court from taking a chance on Almrei. But the effect was rather to contribute to a finding that the authors had not sought to be fair and balanced.\n\nConsiderable evidence was heard about the nature of the concept of jihad in Islam. The public summary, at paragraph 10, describes this as interpreted in two ways by Muslims: an \"internal\" jihad that everyone engages in to become a better Muslim, and an \"external\" jihad that is necessary to defend Islam when it is under attack. The summary states that Al Qaeda has adopted the latter definition as central to Islam. The weight of the evidence, particularly that of Sheikh Kutty, supports a finding that external jihad can be both offensive and defensive. The type of offensive jihad undertaken by Al Qaeda is not supported by the sacred texts in Islam as interpreted by mainstream scholars.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-4", + "id": "fc-57473-174", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 15–18", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 419–420", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "On August 5, 2019, the lawyer emailed the Migration Section explaining that she had only recently been retained and was requesting an extension of time to respond to the July 25, 2019, letter.\n\nOn August 6, 2019, an officer with the Migration Section replied by email and granted an extension of seven days (i.e. to August 13, 2019) to provide a response. The officer also set out the following bullet points in the email, presumably to explain why only a relatively short extension was being granted: ● The applicant has been provided with ample time to respond to our concerns. ● The applicant provided an email address which we used [. . .] so there is no reason the applicant would not have been aware of our concerns and been able to respond in a timely manner. We resent the letter on 25th July giving 10 days to respond. ● The facts are clear regarding what was not disclosed on the original application – the applicant was asked in the application ‘Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory’ – to which the applicant indicated NO – which was not true.\n\nAlthough the officer does not say so expressly, there is no issue that the specific question to which the officer is referring in the last bullet point is Question 2(b) under Background Information in the Application for Visitor Visa (Temporary Resident Visa) form. It asks: “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?” As the officer notes, the applicant answered “No” to this question on her original TRV application.\n\nOn August 12, 2019, the applicant’s lawyer emailed a letter and supporting documents to the Canadian Consulate.", - "current_to": "2020-08-04", + "text": "There is no dispute between the parties that the jihad against the Soviets and the Najibullah regime in Afghanistan was supported by the ulemma or community of Islamic scholars that individually and collectively have the authority to issue fatawa. This was also viewed by the US and Middle Eastern governments as a legitimate conflict. The Afghans and the Arabs who supported them were engaged in a defensive jihad. There was also evidence that the conflicts in Tajikistan and Chechnya were approved, if not by the Western governments who had no direct interest in those affairs, at least by the Saudi ulemma and Royal family. Participation or support for those actions, in itself, does not provide reasonable grounds to believe that an individual subscribed to Bin Laden's notion of global jihad or became a member of his network.\n\nThe summary refers to the creation of training camps and an elaborate infrastructure by Bin Laden and cites the warnings he issued to the West (para.11). This is accurate but it ignores the crucial question of timing. This infrastructure and the warnings followed his return to Afghanistan in 1996. Prior to the fall of the Najibullah regime in 1992, Bin Laden was just one of the mujahedin leaders operating camps. His role in the fighting was modest. The bulk of it was done by the Pashtuns, Tajiks and Uzbeks under leaders such as Hekmatyar, Sayyaf, Massoud and Dostum.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-5", + "id": "fc-57473-175", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 19–23", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 421–423", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In response to the specific allegation in the July 25, 2019, letter concerning the applicant not disclosing having been unlawfully present in the United States, the applicant’s lawyer wrote that she “can confirm that [the applicant] neither visited nor overstayed at [sic] the USA in the last 10 years.”\n\nHowever, the applicant’s lawyer then went on to state that there were three “mistakes” in the TRV application. These mistakes were made because an “unauthorized” representative in India had prepared the TRV application for the applicant, the applicant had answered truthfully all the questions the representative asked her, but the representative had not translated some of the questions on the application properly.\n\nThe applicant’s lawyer described the mistakes in the TRV application as follows.\n\nFirst, in response to the question “Have you previously been married or in a common law relationship?”, the applicant had answered “Yes” and provided the name of her late husband, who had passed away in 2008. The lawyer wrote that the correct answer is “No” because the applicant had only been married once, to her late husband. (In response to the immediately preceding question asking her current marital status, the applicant had stated “widowed”.)\n\nSecond, in response to the question “Are you able to communicate in English and/or French?”, the applicant had answered “English” when the correct answer is “No”. (The applicant had stated in her application that her mother tongue is Punjabi.)", - "current_to": "2020-08-04", + "text": "In paragraph 15, the summary notes that \"[b]y 2000, Al Qaeda was estimated to have operated approximately a dozen camps in Afghanistan where as many as 5000 militants may have been trained who, in turn, may have created cells in 50 countries”. The source for this statement is said in the footnote, inaccurately, to be the US State Department. The source is actually a newspaper article that attributes the information to \"a recent Central Intelligence Agency analysis\", which is not in evidence.\n\nApplying Dr. Givens' criteria, it is apparent that this source is not authoritative. But even if it is taken at face value it does not cover the timeframe in this case. After 1996 Bin Laden had effectively declared war on Saudi Arabia and its Western allies, particularly the United States, and was training terrorists to conduct operations abroad. But there is no evidence that Hassan Almrei passed through any of Bin Laden's camps after 1996.\n\nAt best, the evidence indicates that he spent a brief time at the Beit al Ansar guesthouse in Peshawar in 1990 which was established and run by the MAK and may have been funded by Bin Laden at that time. That guesthouse was a way station en route to camps in Afghanistan which were run by Sayyaf and Hekmatyar. Almrei didn't get to one of those camps in 1990 because he fell ill. There is no evidence that he was trained or indoctrinated, as Mr. Young speculated, at that guesthouse. And the witnesses are all agreed that the vast majority of the 35,000 or more Afghan Arabs who passed through the camps went home to get on with their lives after their adventure.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-6", + "id": "fc-57473-176", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "para 24", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 424–425", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Third, in response to the question “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?”, the applicant had answered “No” when the correct answer is “Yes”. The lawyer explained this mistake as follows (sic throughout): Although Madame Swaranjit Kaur was never denied entry or ordered to leave Canada or any other country, but she was denied a visa to the USA on 2018 because when she was visiting the USA between 2006 and 2008, she has lost her Indian passport and then left the USA without her lost Indian passport, which caused her a delay over 6 month in USA for her to be able to arrange for an alternative (lesser passer) Indian travel document (Indian Landing paper) to allow her to board a plane to go back to India on June 2008. [Here the lawyer makes reference to an attached document. From the list of attachments provided with the letter, it would appear to be a “report of lost passport.” For some reason, this document was not included in the record on this application for judicial review.] The reason why this question was answered no, because the unauthorized representative told her that the question is only asking about Canada: “if been refused a visa or permit, denied entry or ordered to leave Canada” in the last 10 years, without translating “or any other country or territory.” Yet she told him that she was refused a visitor visa to the USA on 2018, but he told her that the question is only about Canada.", - "current_to": "2020-08-04", + "text": "The supposition that Al Qaeda has created \"cells\" and sent \"sleepers\" abroad is a matter of some controversy. As noted, the sole source for the statement about cells is a newspaper article from January 2001. In paragraph 34 of the summary there is a statement that the Bin Laden network uses \"sleepers\" in its international terrorist operations. These are described as individuals who establish themselves in foreign countries for extended periods of time prior to being given orders to execute an operation. Preceding the activation of the operation, they may live as regular citizens, leading unremarkable lives, and avoiding attention from local authorities. The sole source that is given for these propositions is a 1999 book by Simon Reeve entitled The New Jackals. The implication is that Mr. Almrei was such a sleeper. The closed information indicates that is how he was perceived by CSIS after he came to their attention in 1999. But, as far as I could determine, this was based solely on the inferences drawn from human source information of doubtful reliability.\n\nA great deal of knowledge has been acquired since 2001 about Al Qaeda’s methods of operation. Sageman, for example, states at pages 106 and 162 of Leaderless Jihad that there have been no sleeper cells in the United States with the possible exception of one individual who was arrested in December 2001, which he doubts. Dr. Williams conceded that he has himself used the “sleeper” terminology to describe persons arrested in the US but now considers that Sageman is correct that Al Qaeda sent agents to conduct operations within a planned time-frame, not to integrate into the community and await further instructions at some later date.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-7", + "id": "fc-57473-177", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 25–27", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 426–427", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The applicant’s lawyer went on to submit that the applicant had not knowingly provided false information in her application. Rather, she had made innocent mistakes. The lawyer attributed the mistakes in the application to the failure of the representative to translate the questions on the application properly, to the applicant’s inability to read and understand the application form that had been completed in English, to the applicant’s age (she was born in 1959), to the applicant’s health (she suffered from a specified medical condition that caused pain and fatigue), and to the passage of more than 11 years “since the event.” (It is not entirely clear what event the lawyer is referring to but it appears to be the applicant’s departure from the United States in June 2008.)\n\nAs set out in the decision letter dated August 16, 2019, the TRV application was refused for two reasons.\n\nFirst, the officer was not satisfied that the applicant would leave Canada at the end of her stay as a temporary resident, as required by paragraph 179(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227. This finding was based on: the applicant’s family ties in Canada and in India; the purpose of the applicant’s visit to Canada; and the applicant’s personal assets and financial status.", - "current_to": "2020-08-04", + "text": "It is understandable that the Service would have been concerned between 1999 and 2001 that Al Qaeda was employing methods similar to those used by foreign espionage services when little was known about Al Qaeda and the jihadi phenomenon. And I can appreciate that there may be differences of opinion on this among security experts. But the SIR presented in 2008 simply recycled stale information without attempting to offer a more balanced and nuanced view.\n\nMuch of what is contained in the summary relating to Al Qaeda and the Bin Laden network is irrelevant, in my opinion, because it does not point to Almrei. For example, paragraphs 22 and 23 address the use of the Internet for communications between members of Al Qaeda and its followers and their use of extremist websites for recruitment, indoctrination, fund raising and propaganda. This is interesting but there is no evidence that Almrei used his computer for these purposes. It did not materially assist the Court to be told that other terrorist suspects have employed these methods when there was no evidence to suggest that Almrei had done so. Both the RCMP and CSIS had the opportunity to scrutinize the hard drive of his computer and there were other, more intrusive, investigative methods available to them to investigate this possibility.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-8", + "id": "fc-57473-178", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 28–31", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 428–429", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Second, the officer was not satisfied that the applicant had answered all the questions in her TRV application truthfully, as required by subsection 16(1) of the IRPA. The officer wrote: Specifically, I am not satisfied that the following information is truthful: You misrepresented previous US refusals which could have induced an error in [the] administration of the Act in that you may have been issued a TRV. Application is clear in that it asks “have you EVER been refused…any country” [emphasis in original].\n\nThe decision letter does not mention the applicant’s alleged omission of her having been unlawfully present in the United States, as set out in the July 25, 2019, procedural fairness letter.\n\nThe officer concludes the decision letter by stating that the applicant had been found inadmissible to Canada in accordance with paragraph 40(1)(a) of the IRPA for, directly or indirectly, misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. In accordance with paragraph 40(2)(a) of the IRPA, the applicant will remain inadmissible for a period of five years from the date of the letter.\n\nThe officer’s GCMS notes shed some additional light on the basis of the officer’s misrepresentation finding.", - "current_to": "2020-08-04", + "text": "I accept the evidence given by Mr. Young and Dr. Rudner, supported by the reference documents, that terrorists employ false identification papers and have need of sources who can provide reliable travel documents to allow them to cross borders. This evidence was relevant to the question of whether Almrei had the necessary skills to be of use to a terrorist organization. It supported the Service's assessment that his own use of such documents and contacts in Bangkok and Montréal was an important part of his \"pedigree\". Coupled with the fact that he obtained a false passport and supporting documentation for Nabil Almarabh in 2001, this was a key element of the case which justified his arrest and detention following 9/11.\n\nMr. Young fairly conceded that some of Almrei’s contacts would have dried up after more than seven years in detention. He thought that Almrei might still have other undisclosed contacts that would be willing to deal with him. Indeed, that is possible but I am sceptical that someone whose identity is now in security databanks around the world and has testified that he disclosed what he knew in an eight hour interview with the RCMP could reactivate those contacts. Almrei’s Travel and Status in Canada:", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-9", + "id": "fc-57473-179", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 32–34", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 430–431", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In the officer’s view, the TRV application “is clear in what is being asked, applicant has signed it that all is truthful and correct, applicant not only did not disclose US visa refusals and the problems in the US in 2008 – but she also did not disclose [her medical condition]. Having had so much trouble in the US previously it is reasonable that the applicant would either make sure all is done correctly to avoid further problems – OR – purposefully not disclose refusals that might affect this application” [original emphasis]. Further, the applicant is responsible for the consequences of having chosen to be assisted by an unauthorized representative.\n\nThe officer was not persuaded by the explanations offered by the applicant’s lawyer for why incorrect information had been included on the TRV application. The officer did not accept that the applicant did not know what she was signing or fully understand the application. The officer therefore found that the applicant is inadmissible to Canada under paragraph 40(1)(a) of the IRPA due to misrepresentation regarding the US visa refusals and rejected the application accordingly.\n\nNotably, while the officer alludes to the applicant’s “problems” in the United States in 2008 (i.e. the delay in leaving because of the loss of her Indian passport), there is no specific finding in the GCMS notes in relation to the concern that had been expressed in the July 25, 2019, letter – namely, that the applicant had been unlawfully present in the United States for 365 days or more within 10 years and that she had failed to disclose this.", - "current_to": "2020-08-04", + "text": "The information in the SIR and the summary regarding Almrei's travels prior to and in coming to Canada is largely based on his disclosures subsequent to the 2001 certificate determination. This information reinforces the fact that he misled Canadian officials about his background and lied when directly asked about the countries to which he had traveled. As several of my colleagues have previously observed, Almrei was economical with the truth when provided with opportunities to explain where he had been and what he had done. He has disclosed additional information only when it became apparent that the authorities were aware of the facts. His credibility, therefore, is suspect.\n\nThe summary states that Almrei was not forthcoming about the honey business that he engaged in both in Pakistan and Saudi Arabia. He says that he found honey (and oud, an incense) less expensive in Pakistan and imported some to Saudi Arabia where he had a small retail business that he had started in high school. It was reported in the media in 2001 that members of Al Qaeda had used the honey business as a cover for the shipment of explosives and money. The summary notes that there is no evidence that Almrei did in fact use honey to conceal weapons or munitions or in order to raise funds for extremist activities. He may have sent a portion of his proceeds to Khattab in Chechnya. As noted above, counsel for the Ministers took the position during the hearings that they did not expect me to arrive at a conclusion other than that this information was merely speculative.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-10", + "id": "fc-57473-180", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 35–36", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 432–434", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "There is no dispute in the present case about how a reviewing court should determine whether there has been a breach of the requirements of procedural fairness. The court must conduct its own analysis and provide what it judges to be the right answer to the question of whether the process the decision maker followed satisfied the level of fairness required in all of the circumstances. This is functionally the same as applying the correctness standard of review: see Dunsmuir v New Brunswick, 2008 SCC 9 at paras 34 and 50; Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 54; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Canadian Pacific Railway Co v Canada (Attorney General), 2018 FCA 69 at paras 33-56; and Elson v Canada (Attorney General), 2019 FCA 27 at para 31.\n\nIn Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada held (at para 22) that “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” Further, the values underlying the duty of fairness “relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision” (at para 28).", - "current_to": "2020-08-04", + "text": "As stated by Mr. Young, Almrei's lies were a major factor in the Service's assessment that he constitutes a threat to national security. But they began to keep an eye on him in 1999 largely because of what they were told by a human source about Almrei’s background and connections. I deal with that source’s credibility in my closed reasons but the gist of what he told the Service in 1999 was at least partially corroborated by later information they received including Almrei's own disclosures.\n\nOver the course of the next two years, the Service collected information about Almrei's statements and actions from human sources which, if credible, would suggest that he was a committed Bin Laden supporter and participant in an international false document network. The Service then drew certain inferences from that information which, in my view, were not well-founded.\n\nAlmrei was under surveillance but there is no indication in the record of any intention to take action against him until 9/11. He may have encountered difficulties in obtaining the permanent resident status he had applied for and steps may have been taken to revoke the refugee finding on the grounds of his representation but he was not a candidate for a security certificate prior to those attacks. Almrei's association with Osama Bin Laden and support for jihad", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-11", + "id": "fc-57473-181", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 37–38", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 435–437", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The common law duty of procedural fairness is “flexible and variable” (Baker at para 22). Several factors must be considered in determining what is required in the specific context of a given case, including: (1) the nature of the decision being made; (2) the nature of the statutory scheme under which the decision is made; (3) the importance of the decision to the individual(s) affected; (4) the legitimate expectations of the party challenging the decision; and (5) the procedures followed by the decision maker itself and its institutional constraints (Baker at paras 21-28).\n\nApplying these considerations, courts have consistently found that in visa applications the requirements of procedural fairness fall on the low end of the spectrum (Sepehri v Canada (Citizenship and Immigration), 2007 FC 1217 at para 3; Asl v Canada (Citizenship and Immigration), 2016 FC 1006 at para 23). While an applicant must be afforded a fair process by the visa officer, what is required for the process to be fair is attenuated by the fact that generally what is at issue is whether the applicant will be permitted to visit, study in, or move to Canada – privileges accorded to foreign nationals by the IRPA and related regulations in specified circumstances.", - "current_to": "2020-08-04", + "text": "At paragraph 54, the summary states that Service information indicates that Almrei shares bonds of kinship as well as faith with the Bin Laden network and has demonstrated his support of Bin Laden, those associated with or sponsored by him and his ideology. This is a reference to human source information dealt with in the closed proceedings. The summary also relies on the information Almrei disclosed in his solemn declaration of November 2002 that he had gone on jihad in Afghanistan and Tajikistan, had received weapons training in the use of the AK-47 assault rifle and had been in guest houses and camps under the command of Sayyaf and Khattab.\n\nAs indicated above, I am satisfied that certain of the human sources relied upon by the Service are not credible and that the information that they provided is not reliable and appropriate within the meaning of the statute.\n\nI state my findings about the sources in the closed set of reasons for judgment. My conclusion about their credibility is based upon operational and source management reports and the cross-examination of the Service witness conducted by the Special Advocates in the closed hearings. Having considered all of the information and evidence carefully, I am satisfied that certain of the human sources in this case had motives to concoct stories that cast Almrei in a negative light.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-12", + "id": "fc-57473-182", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "para 39", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 438–440", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Even so, procedural fairness requires that an applicant for a visa have an opportunity to participate meaningfully in the application process. Consequently, the duty of procedural fairness can require that an applicant be given an opportunity to respond to a decision maker’s concerns when those concerns go beyond simply whether the legislation or related requirements are met on the face of the application (Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24). When, for example, the applicant may be unaware of the existence or the basis of the concern, procedural fairness may require prior notice of the concern before a decision is made so that the applicant has an opportunity to try to disabuse the officer of the concern. See Talpur v Canada (Citizenship and Immigration), 2012 FC 25 at para 21; Mohammed v Canada (Immigration, Refugees and Citizenship), 2019 FC 326 at paras 25-26; and Bui v Canada (Citizenship and Immigration), 2019 FC 440 at para 27. While these cases all concerned applications for permanent resident visas, in my view the principles they stand for are equally applicable to applications for temporary resident visas (cf. Kong v Canada (Citizenship and Immigration), 2017 FC 1183 at paras 22-27). Where the concern relates to misrepresentation, the importance of having a meaningful opportunity to meet it is even more evident given the potential consequences of a finding of misrepresentation: see Toki v Canada (Immigration, Refugees and Citizenship), 2017 FC 606 at para 17, and Ntaisi v Canada (Citizenship and Immigration), 2018 CanLII 73079 (FC) at para 10.", - "current_to": "2020-08-04", + "text": "Information was provided by one source in September 2001 that is implausible given what is known now about the chronology of events including Almrei's travels and Bin Laden's movements. I accept that the Service did not have reason to doubt the information at that time, although the source was then designated as being of unknown reliability. However, when given a further opportunity in 2004 to recount his knowledge of what Almrei had told him about his experiences in Afghanistan, the source provided information which is consistent with Almrei's own evidence. The source was highly motivated to curry favour with the Service in 2001. In preparing the SIR, the Service chose to go with the 2001 account and ignored what he said three years later.\n\nAlmrei, in common with many others, has made comments that were critical of US policy towards the Middle East. He has freely acknowledged this. So long as he lacked the intent to act upon those views in a violent manner, that does not make him a security risk. The Ministers do not claim that he intended to commit an act of violence.\n\nI find Almrei’s evidence to be credible that prior to 9/11 he did not know much about Bin Laden other than that he was a wealthy Saudi who had supported the mujahedin during the anti-Soviet jihad and was then close to the Taliban. Almrei was certainly aware of events in the Middle East at that time but his primary interest was in Khattab and his role in the Chechnyan insurgency.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-13", + "id": "fc-57473-183", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 40–42", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 441–443", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In the present case, the applicant advances two principal arguments. First, the procedural fairness communications she received – the July 25, 2019, letter and the August 6, 2019, email – were insufficient because they did not inform her of the officer’s specific concerns. Second, since the applicant’s response to these communications evidently raised additional concerns for the officer, the officer was required to put these new concerns to the applicant in another procedural fairness letter before making a decision.\n\nI agree with the applicant’s first argument. Since this is sufficient to dispose of this application, it is not necessary to address her second argument.\n\nIt follows from the principles cited above that, when a procedural fairness letter has been sent, a functional approach should be taken to assessing its adequacy. The purpose of a procedural fairness letter “is to provide enough information to an applicant that a meaningful answer can be supplied” (Ntaisi at para 6). Thus, the question is: Does the letter inform the affected party of the decision maker’s concerns? To serve this purpose, the letter must state more than general concerns. It must state the decision maker’s concerns with sufficient clarity and particularity so that the affected party has a meaningful opportunity to address them. See AB v Canada (Citizenship and Immigration), 2013 FC 134 at paras 53-54, and Toki at para 25.", - "current_to": "2020-08-04", + "text": "The evidence does not provide reasonable grounds to believe that Almrei had any association with Bin Laden or opportunity to meet apart from a brief period of time when their presence in Afghanistan may have coincided. There is no evidence that Bin Laden was at Beit al Ansar when Almrei was there and the evidence does not indicate that Almrei later went to any camps that Bin Laden controlled. Rather, he went to camps run by Sayyaf and Khattab, neither of whom can be reasonably said to be part of Al Qaeda.\n\nMr. Quiggin and Dr. Williams testified that they did not see the indicators in Almrei’s history that would suggest to them that he was Al Qaeda, such as evidence that he had gone to Sudan between 1992 – 1996 when Bin Laden and his entourage were based there.\n\nThe main thrust of the Ministers' case during the public hearings was on Almrei’s support for jihad, his experiences in Afghanistan and Tajikistan, contact with Abdul Rasul Sayyaf and support for Ibn Khattab’s role in Chechnya. Almrei's position is that his involvement in the Afghan jihad was supported at the time by the Islamic establishment. He had minimal contact with Sayyaf, did not know about the crimes attributed to Sayyaf's forces and was not himself directly involved in any fighting. His stays at Sayyaf's and Khattab’s camps were in the nature of rebat or garrison duty. He was trained in the use of an AK-47 but never had occasion to use it in combat.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-14", + "id": "fc-57473-184", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 43–44", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 444–445", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The July 25, 2019, letter states that the officer who wrote it had a concern with respect to the “authenticity” of certain information the applicant had provided in connection with her TRV application, specifically: On the current application form, you have not declared being unlawfully present for 365 days or more within 10 years in the United States. According to information in our records, you were unlawfully present for 365 days or more within 10 years in the United States.\n\nWhatever the concern was that had given rise to the July 25, 2019, letter, it is expressed confusingly at best. It is not at all clear why it is a concern about “authenticity”, what exactly the applicant should have declared, or where she should have done so on the TRV application. Further, the letter is ambiguous. Is it referring to the ten year period prior to the TRV application (as the applicant and her lawyer evidently thought) or some other ten year period? If it is the latter, which ten year period? According to the applicant, the events relating to the loss of her Indian passport while she was visiting the United States occurred more than ten years earlier and so the allegation in the July 25, 2019, letter (as she understood it) was mistaken. There is no way to tell whether the July 25, 2019, letter is referring to these events or to something else.", - "current_to": "2020-08-04", + "text": "Almrei's evidence about his time in Afghanistan is consistent with Dr. Williams' evidence about the reality of the jihad experience for most of the Arab Afghans. The label \"Gucci Jihadi\", which Williams said was applied by the Afghans to some of the volunteers, doesn't fit Almrei. He was not wealthy and he was not there as a tourist. He was a young man seeking adventure and, possibly, a ticket to paradise. Almrei went back and forth to his home in Saudi Arabia to complete high school and later to attend to his business affairs. Eventually, he had had enough adventure and wanted to get on with his life, as did the great majority of Arab Afghan veterans. There is no reliable evidence that while he was in Afghanistan he was indoctrinated by and committed himself to Al Qaeda's vision of global jihad.\n\nAlmrei testified that while he had met Sayyaf, the mujahidin leader would have had little, if any interest in him. Sayyaf was a major figure in Afghan politics. Almrei was just one of the many young Arab volunteers who passed through his guest houses and camps at that time. I accept Dr. Williams’ view that Sayyaf maintained his camps primarily to protect his position in Afghanistan, not to export terror. Some of those who passed through Sayyaf’s camps later joined Al Qaeda.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-15", + "id": "fc-57473-185", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 45–48", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 446–448", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "While these are all serious problems, it is not necessary to come to a final determination about the adequacy of the July 25, 2019, letter. This is because, as I read the decision letter and the officer’s GCMS notes, this alleged non-disclosure does not figure much, if at all, in the final decision. As noted above, the officer who made the decision does not make any findings one way or the other about whatever it was that that letter was referring to. Rather, the principal concern was that the applicant had been refused a US visa twice in 2010 and she had not disclosed this in response to Question 2(b).\n\nTo repeat for ease of reference, the August 6, 2019, email expressed the following concern: The facts are clear regarding what was not disclosed on the original application – the applicant was asked in the application ‘Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory’ – to which the applicant indicated NO – which was not true.\n\nBoth on its face and in light of the final decision, this email appears to be expressing a different concern than the one expressed in the July 25, 2019, letter. Whether the requirements of procedural fairness were met or not thus turns on whether the email informed the applicant of the concerns of the officer who ultimately decided to reject the TRV application and to find the applicant inadmissible due to misrepresentation.\n\nBy way of further context, it appears from the GCMS notes that the officer who made the decision at issue sent the August 6, 2019, email but a different officer had prepared the July 25, 2019, letter.", - "current_to": "2020-08-04", + "text": "Almrei volunteered the information that he had stayed at a guest house in Babhi reserved for more important travelers. He explained how that came to be. The Ministers rely on his stays there to suggest that Almrei enjoyed a greater degree of intimacy with Sayyaf than that to which he has admitted. I am not persuaded by that. It is simply implausible to believe, given everything that has been presented in this case about Sayyaf, that he would have picked Almrei out of the herd and indoctrinated him in the “web of hate and terrorism over which Sayyaf presided” as the Ministers suggest.\n\nHad Almrei stayed with Sayyaf for any significant length of time or attended the university that Sayyaf ran at Babhi, an inference might have been drawn that he was being trained for other purposes. But Almrei moved on to a camp where he received basic training in the ubiquitous AK-47 and led prayers. On the second trip he connected with Khattab. Almrei played ping-pong one evening with Sayyaf . That was the extent of the relationship.\n\nThere is no doubt that Sayyaf is an ultra conservative Islamist with views on many issues as extreme as those of the Taliban. In a September 2, 2004 editorial, the New York Times described him as \"a notorious warlord and savage fundamentalist who in the 1980s and 1990s served as the chief mentor and protector of Khalid Sheikh Muhammad, the Qaeda mastermind of the September 11 terrorist attacks\" (T-114). Incredibly, the editorial noted, Sayyaf had been a major beneficiary of the American-led invasion and was then one of the country's leading power brokers whose endorsement was sought by all of the presidential candidates including Hamid Karzai.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-16", + "id": "fc-57473-186", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 49–52", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 449–451", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The respondent argues that it was sufficient for the officer simply to alert the applicant that there was a concern that her answer to Question 2(b) on the application form was false. Since the applicant knows her own travel history, she would know what the officer was referring to in the email. Whatever might have given rise to the original procedural fairness letter, it is clear from the decision that the officer’s concern was with respect to the applicant’s failure to disclose previous US visa refusals. Since the applicant would have known about those refusals, there was no breach of procedural fairness despite the fact that the officer did not refer to them specifically in the email.\n\nI do not agree.\n\nEven assuming perfect recollection of her travel history on the part of the applicant, the respondent’s argument presumes that the information the officer was relying on is accurate. However, this may be the very point in issue when a concern about misrepresentation arises. One cannot be faulted for failing to disclose something that is not, in fact, the case.\n\nThe officer who made the final decision evidently believed that the applicant had been refused a US visa twice in 2010. The grounds for that belief do not appear in the record. There is nothing before me to suggest that the officer could not have disclosed this specific concern to the applicant in the August 6, 2019, email and invited a response. Because the officer did not do so, the officer and the applicant ended up at cross-purposes.", - "current_to": "2020-08-04", + "text": "Sayyaf’s focus throughout his career has been on Afghan politics. It appears from the evidence that he picked the sides that he fights on carefully to advance those interests. By all accounts, he was the Saudi’s favourite war lord in Afghanistan during the anti-Soviet jihad as he was one of the few who spoke Arabic fluently. That may explain why he chose to go against Bin Laden and the Taliban and to join with Massoud and the other members of the northern alliance and why the US favoured him following the invasion.\n\nSayyaf’s actions speak louder than his words, as Williams and Quiggin stated. He could not have been part of the Bin Laden network while he was actively trying to kill Bin Laden and other members of Al Qaeda. It is also implausible that he would have turned against his sponsors to support Bin Laden’s objective of overturning the House of Saud. And I find it inconceivable that the US would have done business with him if they had reason to suspect his involvement or support of attacks on American personnel.\n\nSome of those who went through Sayyaf's facilities near Peshawar and his camps in Afghanistan went on to become part of Al Qaeda and its affiliated groups or associated themselves with the Bin Laden philosophy and have committed terrorist acts outside the region. These individuals made their own choices. If there was any evidence that Sayyaf had sponsored or was otherwise linked to their actions, I doubt that he would have remained free following the coalition invasion of Afghanistan or would have been allowed to become a member of the new parliament and exert influence over the Karzai government.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-17", + "id": "fc-57473-187", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 53–55", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 452", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "In the response prepared by her lawyer, the applicant disclosed that she had been refused a US visa in 2018 and offered an explanation for why it was not mentioned in her TRV application: the applicant had told her representative about it but he said the question only concerned Canadian visa refusals. There is no indication in the record that the officer was even aware of this refusal before the applicant disclosed it in her procedural fairness response. Moreover, it is not clear how, if at all, this particular omission from the TRV application figures in the officer’s misrepresentation determination. While the applicant acknowledged having been refused a US visa once (in 2018), this alone cannot be the basis of the misrepresentation finding. This is because, in the decision letter and the GCMS notes, the officer consistently refers to visa refusals – that is, to more than one – when describing the applicant’s misrepresentation.\n\nOn the other hand, it is clear that the two alleged 2010 visa refusals figure significantly in the decision. The officer mentions them specifically in the decision letter and in the GCMS notes. However, the applicant did not have a meaningful opportunity to address this allegation because she was never advised that this is what had given rise to the officer’s concern about misrepresentation in the first place.\n\nIn sum, I am not satisfied that the August 6, 2019, email communicated the officer’s concern about misrepresentation with sufficient clarity and particularity to provide the applicant with a meaningful opportunity to respond. Consequently, the decision on the TRV application was made in breach of the requirements of procedural fairness.", - "current_to": "2020-08-04", + "text": "There is considerable evidence that Sayyaf’s forces committed war crimes or crimes against humanity during the efforts to oust the Najibullah regime. Sayyaf is quoted as having said that anyone remaining in Kabul was a Najibullah supporter and deserved to die (Ex. A-3, T-6, p.16). His forces are said to have attacked the minority Shi’ite, Hazara community with “unrestrained fury beheading old men, women, children and dogs” during the ensuing civil war (Ex. A-27, p.263). I agree with the Ministers that the respondent's contention that Sayyaf's activities fall within the parameters of the armed conflict exemption in the Criminal Code's definition of terrorism is untenable with respect to those events. I do not agree that it would have no application to all of Sayyaf's activities including his involvement in the anti-Soviet jihad and the internal war against the Taliban. In any event, there is no evidence or information before me that Almrei participated in any of the attacks that could be characterized as war crimes or crimes against humanity.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-483303-18", + "id": "fc-57473-188", "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 56–57", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 453", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "For these reasons, the application for judicial review will be allowed. As noted above, the applicant does not seek reconsideration of her TRV application. She is content to have the decision dated August 16, 2019, (including the finding of misrepresentation) set aside. I will so order.\n\nThe parties have not suggested any serious questions of general importance for certification under paragraph 74(d) of the IRPA. I agree that none arise. JUDGMENT IN IMM-5627-19 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The decision dated August 16, 2019, is set aside. No question of general importance is stated. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5627-19 STYLE OF CAUSE: SWARANJIT KAUR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA HEARING HELD BY VIDEOCONFERENCE ON JULY 7, 2020 FROM OTTAWA, ONTARIO (COURT) AND MONTREAL, QUEBEC (PARTIES) JUDGMENT AND REASONS: NORRIS J. DATED: August 4, 2020 APPEARANCES: David Chalk For The Applicant Jocelyne Murphy For The Respondent SOLICITORS OF RECORD: Chalk Immigration Montreal, Quebec For The Applicant Attorney General of Canada Montreal, Quebec For The Respondent", - "current_to": "2020-08-04", + "text": "Mr. Justice Russell Zinn cautioned about the risk of guilt by association in Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2009] F.C.J. No. 656. At paragraph 53 of his reasons, Justice Zinn pointed out that a fundamental principle of justice is that the accused does not have the burden of proving his innocence and that proving the negative of an association with an extremist group can be extremely difficult. In that case, the applicant was acquainted with at least one confirmed terrorist, Ahmed Ressam, but there was no evidence that he himself had ever committed such an act. In other proceedings, the Court has been prepared to find that the named person’s involvement with terrorist networks was substantiated on the evidence and went beyond mere “guilt by association” reasoning: see for example, Mahjoub v. Canada (Minister of Citizenship and Immigration), 2006 FC 1503, [2006] F.C.J. No. 1862. In my view, Almrei cannot be found to be a danger to national security or a member of a terrorist organization due to his limited association with Sayyaf. If that were the case, it would apply to much of the current Afghan Government including the President.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-1", + "id": "fc-57473-189", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 1", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 454–455", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The Applicant, Ms. Thi Ngoc Nguyen, seeks to challenge a decision taken under section 133 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (“the Act”), whereby the Minister of Public Safety and Emergency Preparedness (“the Minister”) requires payment of a specified amount of money before returning a seized diamond ring. The Applicant’s arguments are all directed at challenging the decision under section 131 of the Act whereby the Minister found that Ms. Nguyen had contravened s. 12 of the Act by failing to report an alleged importation of a ring. Subsection 131(3) of the Act is a privative clause within the Customs Act that requires decisions made pursuant to s. 131 of the Act be subject to review only as described in s.135(1) of the Act. Subsection 135(1) of the Act requires that a Minister’s decision made under s.131 of the Act be appealed by way of an action. In other words, a decision made pursuant s. 131 of the Act must be challenged by way of action and not by way of application for judicial review.", - "current_to": "2009-07-15", + "text": "Among Almrei’s communications intercepted following 9/11 is one in which he and his caller expressed concern that the attacks were committed by Muslims or Arabs. The closed information does not suggest in any way that Almrei knew or was expecting these events. I don't believe, as the Ministers contend, that his testimony suggests that he found the attacks objectionable simply because they involved the suicide of the attackers, an act which is prohibited by the Koran. I accept his evidence that he considers the attacks to be morally wrong and contrary to the teachings of Islam because they involved the killing of innocents.\n\nThe summary states that in Federal Court proceedings in 2004 Almrei identified photographs found on his computer during an RCMP search including photos of Bin Laden and one of the 9/11 hijackers, Mohammad Atta (paragraph 55). These are photographs of the sort that are downloaded to a computer when one visits news websites. The evidence given in the prior proceedings was that Almrei followed events on-line. A great many people would have had these photographs on their computers following 9/11. The Ministers did not press this allegation during the hearings and in their closing submissions and I have given it no weight. I mention it only because the allegation remains on the public record. Arab Afghan Connections:", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-2", + "id": "fc-57473-190", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 2–3", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 456–458", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "As Justice Andrew MacKay stated in ACL Canada Inc. v. Canada (Minister of National Revenue - M.N.R.), (1993) 68 F.T.R. 180, 107 D.L.R. (4th) 736 (F.C.T.D.): [54] In my view, Parliament has insulated from appeal the penalty imposed in the event there is found to be a contravention of the Act. That may seem surprising since the penalty will often be the primary concern of the person whose goods are seized under the Act or who is served with a notice and demand for payment under s.124. Yet that simply carries on a long-standing regime under Customs Acts of the past, at least in relation to goods seized, for the goods are forfeited to Her Majesty at the time of the contravention of the Act (s. 122), and terms of any remission, where the Act or regulations are contravened, have been considered beyond the role of the Court to review. (Lawson et al. v. The Queen, [1980] 1 F.C. 767 F.C.T.D. (per Mahoney J. at 772)). [Underlined by the court]\n\nA technical provision with a privative clause presents a conundrum to judicial review, when it does not result in a conclusion that would be reached due to factual evidence! In such an instance, the law is followed although justice may be undone. In the case at bar, this has occurred due to a series of circumstances which include language barrier challenges for an applicant, misinterpretation of significant evidence by first instance decision-makers and jurisprudence pointing at the frustration of judges for a period of years (Dokaj v. Canada (Minister of National Revenue - M.N.R.), 2005 FC 1437, [2006] 2 F.C.R. 152; ACL Canada, above, at para. 56, see also below at paragraph 22 of this Decision).", - "current_to": "2009-07-15", + "text": "The Ministers assert that Almrei is associated with Arab Afghans connected to the Bin Laden network. It is clear from the evidence that Almrei took advantage of his connections in the network of Arab Afghan veterans when he required assistance to make his way to Canada, that he associated with at least one veteran while in Canada and that he aided another by procuring a false passport and contributing to his bail bond. What is less clear is whether any of these individuals were part of the Bin Laden network as described in the Public Summary and the Ministers' evidence. Ibn Khattab\n\nThere is contradictory information in the record about Khattab and he remains a shadowy figure in the history of the region. The weight of the evidence before me in this case favours a finding that he was not a terrorist in his own right or a terrorist patron but I accept that there are reasonable grounds to believe the contrary. Khattab was a committed jihadist with a fundamentalist, Wahhabi outlook on Islam and the world. His reasons for participating in jihad in Afghanistan were the same as the other Afghan Arabs. With the fall of the Najibullah government, he declined to become involved in the Afghans' internecine strife and looked around for another place where he considered Muslims were oppressed. He found it first in Tajikistan and then in Chechnya.\n\nTajikistan was under the control of a hard-line communist government which remained in office with the support of the Russians when civil war broke out in May 1992. Supporters of the opposition were forced to take refuge in northern Afghanistan where they were protected by Ahmad Shah Masoud. Khattab allied himself with the United Tajik Opposition (UTO) party, a coalition of democratic reformists and Islamists led by Sayid Abdullah Nuri.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-3", + "id": "fc-57473-191", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 4–5", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 459–460", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "An iron-clad privative clause can only be interpreted as it is and nothing more, if a court recognizes it is but a court, and nothing more; nevertheless, the subject-matter can then be reviewed by the executive branch for eventual formulation by the legislative branch so that justice can prevail, where in rare exceptions, cases of honest citizens and residents of Canada fall through the cracks. Such is the situation in this case, wherein, the court understands its limitations under the separation of powers and the legislation is clear on given points under which a decision would be overturned, if it ruled differently. The court acknowledges even if it were inclined to rule otherwise, that under constitutional supremacy, it is not for the court, itself, to write the law but rather it is for the two other branches of government to remedy the situation if they so see fit.\n\nThe fact a dialogue can ensue among the three branches of government through jurisprudence, represents, in and of itself, the measure of health in a democracy. The spirit of the law attempts to be at one with justice, as a synchronized whole, where the three branches of government, although working separately, set matters right under the supremacy of that constitutional framework, each within its own jurisdiction. II. JUDICIAL PROCEDURE", - "current_to": "2009-07-15", + "text": "Almrei testified that he stayed in Khattab's house at the Tajik refugee camp in Kunduz. During the Tajik civil war, Russian forces were deployed along the border to repel infiltration from Afghanistan. The UN negotiated a ceasefire in October, 1994 which led, to a peace agreement in 1997. I think that this may explain why Khattab moved on to Chechnya. Almrei's evidence that he had traveled to the border region with Khattab to scout Russian positions but they did not engage in fighting is, in my opinion, credible as the cease fire would have been in place during the months he was in the region.\n\nKhattab was a warrior. He favoured frontal attacks on the Russians. The information that he was directly involved in terrorist activities in Chechnya is not, in my view, persuasive but there is some information to that effect. The most troubling aspect regarding Khattab's sojourn in Chechnya is his association with Basayef, against whom a stronger case can be made of terrorism. There is also information that Khattab’s group may have engaged in terrorist acts after his death. The information that Khattab condoned the attacks on Americans in Saudi Arabia is credible as it would be consistent with his personal mission to drive foreigners out of Muslim lands.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-4", + "id": "fc-57473-192", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 6–9", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 461–462", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "This is an application for judicial review of a Ministerial decision dated August 7, 2008 (“the Decision”), which made two determinations. First, pursuant to s. 131 of the Act, the Minister found that Ms. Nguyen had contravened s. 12 of the Act. Having found a contravention of the Act, the Minister then determined pursuant to s. 133 of the Act that a ring under seizure would be returned to Mr. Nguyen upon receipt of the amount of $30,483.20, to be held as forfeit. III. BACKGROUND\n\nMs. Nguyen is a Canadian citizen who is originally from Vietnam, but who resided in Surrey, British Columbia at the time of the enforcement action. She was a mushroom farm worker but currently works as a manicurist.\n\nOn February 15, 2007, Ms. Nguyen left Canada for a visit to Vietnam. She took with her various clothing and jewellery, including a diamond ring (“the ring”), two other diamond rings (“the engagement and wedding rings”), and two pairs of earrings with clear stones (“the earrings”).\n\nAbout two weeks later, on March 2, 2007, Ms. Nguyen returned to Canada, bringing back all the jewellery which she had taken with her. In response to a question on her customs declaration form as to whether she was bringing into Canada items purchased or received abroad, she stated that she had nothing to declare. At the preliminary inspection point, she was referred to secondary inspection because of her difficulty communicating in English. A customs officer at the secondary inspection point opened Ms. Nguyen’s luggage. This second customs officer unfolded a light jacket/shirt and felt a small lump in its pocket. When the customs officer opened the pocket, she discovered Ms. Nguyen’s jewellery in a small jewellers’ plastic bag.", - "current_to": "2009-07-15", + "text": "The information and evidence presented in this case does not in my opinion support a finding that Khattab was a member of the Bin Laden network. They had likely encountered each other during the anti-Soviet jihad but did not fight in the same unit. Bin Laden may have contributed funds to Khattab in Chechnya and some of Khattab's fighters moved on to join Al Qaeda. But Dr. Williams thought that the number was very low. Khattab was unwilling to criticize Bin Laden but the evidence does not indicate that he was prepared to support or join Bin Laden's global jihad.\n\nAlmrei's association with Khattab was limited to a meeting in Babhi (Pabbi), a few trips to Kunduz and forays to and across the Amu Darya River into Tajikistan. He says that he took some food with him on his later trips as it was scarce in the Tajik refugee camp at Kunduz and that he obtained a grant from the Al Haramain Foundation in Ryadh to help the Tajiks build a school for girls in the camp run by the UTO. He subsequently followed Khattab's fortunes in Chechnya by long-distance from Saudi Arabia and later Canada.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-5", + "id": "fc-57473-193", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 10–12", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 463–464", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Ms. Nguyen provided an appraisal, an invoice, and a diamond grading report for the ring. The appraisal for the diamond in the ring was conducted by a gemological consultant in Vancouver on March 31, 2005. This appraisal suggested an insurance coverage of the diamond before its affixation to a gold ring at $124,800. The invoice was with respect to the cost of setting the diamond in a gold band. This invoice was issued by a jeweller located in Vancouver and was dated April 15, 2005. Finally, the diamond grading report was with respect to the diamond in the ring and was dated September 15, 2003 in Antwerp, Belgium.\n\nThe customs officer told Ms. Nguyen that the documents do not establish that the ring had been legally imported into Canada or that applicable duties and taxes had been paid.\n\nMs. Nguyen was unable to provide receipts for the purchase of any of her jewellery because the jewellery consisted of gifts from people with whom she was no longer in contact. She indicated to the customs officer that the engagement and wedding rings were given to her by her ex-husband while they both lived in Montreal. In her affidavit, she claims that her ex-husband gave her the gifts of earrings in 1994, and in 1997 he gave Ms. Nguyen the wedding and engagement rings. This jewellery is now over 10 years old. Ms. Nguyen was separated from her ex-husband in 1998 and they are not on speaking terms.", - "current_to": "2009-07-15", + "text": "The Ministers regard the story about the girls school to be a complete contrivance intended to appeal to Canadian sensibilities and to conceal the funding of weapons and munitions and other supplies for Khattab. I was also sceptical of Almrei's claim until I read a report by a human source that Almrei had told him of this when he had described his experiences in Afghanistan. It remains difficult for Western minds to accept that a charitable foundation would write a check for roughly $35,000 to a young man who walked in off the street with a story about building a school to aid refugees. Almrei says he had a reference from an Islamic scholar in his hometown that was sufficient evidence of his bona fides for the foundation. I note that while some of the Al Haramain foundation offices have been listed for supporting terrorism, the Riyadh office was not included. There is evidence that Khattab was supported by many Saudis. Dr. Williams said he was considered to be a hero and was publicly mourned in Saudi Arabia, including by the Royal family, when he was killed by the Russians in 2002.\n\nAlmrei admired Khattab and supported his actions in Tajikistan and Chechnya. They were from the same city in south-eastern Saudi Arabia, Damman, and just a few years apart in age. But Khattab was a leader and a warrior. Almrei was content to go where others suggested and, if his evidence is to be believed, did no fighting at all. His association with Khattab does not, in my opinion, support a finding that he is a danger to the security of Canada. Nabil Almarabh", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-6", + "id": "fc-57473-194", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 13–16", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 465–466", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "She indicated to the customs officer that the ring was given to her in Vancouver as a gift from her boyfriend (Certified Record at pp. 2, 4-5). When asked what her boyfriend does for a living, she indicated that he owns a business in Hong Kong where he now lives (Certified Record at p. 4). In her affidavit, Ms. Nguyen confirmed that she was given the ring on Valentine’s Day in 2005 by her boyfriend in Vancouver. According to Ms. Nguyen, she was separated from her boyfriend by the end of 2006 and they are no longer in contact.\n\nNot satisfied, the customs officers seized the ring because Ms. Nguyen had not declared it on the customs forms as she allegedly was required to do. She also did not have receipts confirming when the jewellery was bought. The other jewellery was also kept in custody but was not seized; the customs officer believed that the other items may have been more than 10 years old; and, therefore, beyond the limitations period.\n\nAt the request of the Minister, GLS Gemlab Limited conducted an appraisal of the ring. Based on this appraisal, the Minister informed Ms. Nguyen by letter dated April 4, 2007, that the ring would be released upon payment of $30,483.20 in duties and an additional $5,681.31 in Provincial Sales Tax.\n\nMs. Nguyen duly requested the Minister to review the enforcement action. By letter dated June 22, 2007, Ms. Nguyen was informed that the Minister was reviewing the enforcement action which had been taken as Ms. Nguyen had not reported the alleged importation of the ring in contravention of s. 12 of the Act. IV. THE IMPUGNED DECISION", - "current_to": "2009-07-15", + "text": "Nabil Almarabh is a Syrian national who originally went to the United States in 1989 and remained there until 1991. He then went to Pakistan and Afghanistan with the support of the World Muslim League. Almrei met Nabil Almarabh at Kunduz. He knew Almarabh then by his kunya or respect name. Almarabh returned to the US in 1993. He was denied refugee status in Canada and deported to the US in 1995. He worked as a taxi driver in Boston at the same firm that employed Raeed Hijazi, later convicted in Jordan in relation to a terrorist plot. Almarabh returned to Canada in 2001 where he met Almrei at his uncle's Ahmed Shehab’s print shop in Toronto.\n\nAlmarabh asked for Almrei's help in obtaining a passport, ostensibly to visit his mother in Jordan. Almrei contacted a person he knew in Montréal and obtained a passport and other identity documents for Almarabh and pocketed a fee for the service. When Almarabh was caught attempting to enter the United States and returned to Canada where he was detained, Almrei contributed to the cash bond that Almarabh's uncle posted to get him released. Almarabh then arranged to have himself smuggled back into the United States in July 2001. He was convicted in Boston of an assault causing bodily harm, fined and placed on probation. Following 9/11, he was arrested by the FBI in Chicago on a material witness warrant at the grocery store where he was working. He had a substantial amount of cash in his possession and amber jewellery which he said was the proceeds of the sale of his share of his uncles' shop.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-7", + "id": "fc-57473-195", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 467–469", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Upon review of the enforcement action, the Minister’s delegate issued two determinations on August 7, 2007, as follows: After considering all of the circumstances, I have decided, under the provisions of section 131 of the Customs Act, that there has been a contravention of the Customs Act or the Regulations in respect of the goods that were seized. Under the provisions of section 133 of the Customs Act, the ring under seizure be returned to the appellant upon receipt of an amount $30,483.20 to be held as forfeit. If release of the goods is not taken on the foregoing terms, within 90 days from the date of this notice, they will be forfeited and disposed of. V. APPLICABLE LEGISLATION Report 12. (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. Time and manner of report (2) Goods shall be reported under subsection (1) at such time and in such manner as the Governor in Council may prescribe.", - "current_to": "2009-07-15", + "text": "In July 2002, Almarabh pled guilty to charges of entering the country illegally and was sentenced to time served. He was deported to Syria in January, 2004. It seems as he escaped the attention of the Syrian authorities until sometime later when he registered for military service. A report from a human rights organization indicated that he remained in detention in 2008.\n\nThe public summary cites a number of media reports for information that Almarabh was linked to several of the 9/11 hijackers, was involved in money transfers that may have helped finance the 9/11 attacks, and was linked to an international forgery ring in which participants collected and traded passports and drivers licenses. In one newspaper report from 2004, a US immigration judge is said to have found that Almarabh presented a danger to national security, was credibly linked to elements of terrorism and had a propensity to lie.\n\nThe Court had the benefit of additional information in the closed proceedings. I am satisfied on the basis of that information that the more alarming media reports about Almarabh were not substantiated by the F.B.I, US Attorney' s Office and US District Court which dealt with his case. Nonetheless, it is clear that Almarabh was prepared to violate US and Canadian law whenever it suited him and that Almrei was willing to aid him in that regard. Ahmed Al Kaysee", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-8", + "id": "fc-57473-196", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 470–473", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Who reports (3) Goods shall be reported under subsection (1) (a) in the case of goods in the actual possession of a person arriving in Canada, or that form part of the person’s baggage where the person and the person’s baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; (a.1) in the case of goods imported by courier or as mail, by the person who exported the goods to Canada; (b) in the case of goods, other than goods referred to in paragraph (a) or goods imported as mail, on board a conveyance arriving in Canada, by the person in charge of the conveyance; and (c) in any other case, by the person on behalf of whom the goods are imported. Goods returned to Canada (3.1) For greater certainty, for the purposes of the reporting of goods under subsection (1), the return of goods to Canada after they are taken out of Canada is an importation of those goods. Where goods are reported outside Canada (4) Subsection (1) does not apply in respect of goods that are reported in the manner prescribed under subsection (2) prior to importation at a customs office outside Canada unless an officer requires that the goods be reported again under subsection (1) after importation. […] Written report (6) Where goods are required by the regulations to be reported under subsection (1) in writing, they shall be reported in the prescribed form containing the prescribed information, or in such form containing such information as is satisfactory to the Minister. […] Déclaration 12.", - "current_to": "2009-07-15", + "text": "Ahmed Al Kaysee was also a veteran of the jihad in Afghanistan. Almrei says that he obtained his name from someone in Pakistan and called him prior to coming to Canada. Al Kaysee had become a Canadian citizen and was preaching as an Imam at a Toronto mosque. Al Kaysee met Almrei at the Toronto airport and helped him get settled. They remained friends until sometime after Almrei was detained. He initially tried to help Almrei by raising funds for legal fees. They are no longer close and Al Kaysee declined to assist in the latest proceedings. Hisham Al Taha\n\nWhen Almrei first applied to come to Canada in 1998, he said he intended to visit Al Taha in Richmond, B.C. In his testimony, Almrei says he was also given Al Taha’s name by his contact in Pakistan. Al Taha agreed to let him use his name when Almrei called, although the two had never met. He later denied speaking to Almrei and refused to assist him in the legal proceedings. Involvement in False Documentation:\n\nAlmrei has admitted knowing people in Montréal who could obtain false documents and that he had a reputation in the community for being able to do this. He has admitted that he traveled to Thailand in 1998 and met an individual who was involved in human smuggling and document procurement and that he contacted that person on several occasions after coming to Canada. He has admitted arranging a marriage of convenience between his employee and Ibrahim Ishak, that he provided a fraudulent reference letter for Ishak and that the two of them were involved in a scheme for obtaining Michigan and Ontario drivers licenses.\n\nThis information supports the finding that Almrei was prepared to and did engage in criminal activity. It does not, in my opinion, point to a conclusion that he is a national security risk.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-9", + "id": "fc-57473-197", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 474–476", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "(1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions prévues par règlement, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. Modalités (2) La déclaration visée au paragraphe (1) est à faire selon les modalités de temps et de forme fixées par le gouverneur en conseil. Déclarant (3) Le déclarant visé au paragraphe (1) est, selon le cas : a) la personne ayant en sa possession effective ou parmi ses bagages des marchandises se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada ou, dans les circonstances réglementaires, le responsable du moyen de transport; a.1) l’exportateur de marchandises importées au Canada par messager ou comme courrier; b) le responsable du moyen de transport arrivé au Canada à bord duquel se trouvent d’autres marchandises que celles visées à l’alinéa a) ou importées comme courrier; c) la personne pour le compte de laquelle les marchandises sont importées. Marchandises qui reviennent au Canada (3.1) Il est entendu que le fait de faire entrer des marchandises au Canada après leur sortie du Canada est une importation aux fins de la déclaration de ces marchandises prévue au paragraphe (1). Exception : déclaration à l’étranger (4) Le paragraphe (1) ne s’applique qu’à la demande de l’agent aux marchandises déjà déclarées, conformément au paragraphe (2), dans un bureau de douane établi à l’extérieur du Canada. […] Déclaration écrite (6) Les déclarations de marchandises à faire, selon les règlements visés au paragraphe (1), par écrit sont à établir en la forme, ainsi qu’avec les renseignements, déterminés par le ministre ou satisfaisants pour lui.", - "current_to": "2009-07-15", + "text": "The public summary notes that Ishak was detained by US authorities at the Detroit airport en route from Bosnia and had in his possession 13 packages of identity and other documents including passports. Almrei has denied knowing anything about these documents. Information from the Charkaoui II disclosure was considered in the closed proceedings regarding this matter. I am satisfied that there is no information to suggest that Almrei was involved or that Ishak was doing anything nefarious with those documents. Ishak was operating an immigration consultancy at that time. One of the sets of documents related to his fiancée whom he wished to help emigrate to Canada at that time, while still married to Almrei’s employee. The information as a whole indicates that Ishak was involved in fraudulent activity but not terrorism.\n\nThe public summary states that Almrei and five other individuals gained access to a restricted area at Pearson International Airport on September 17, 1999. Security officials were said to be probing a number of missing clearance and security passes for the most sensitive areas of the airport. These alarming statements are coupled with other information that a number of photographs were found on Almrei's computer during an RCMP search including a security badge, passport photo and the cockpit of an airplane.\n\nThis was the only new allegation against Almrei in the 2008 SIR and public summary. Airports are an obvious target for terrorist acts. When Mr. Young testified, he had not read the RCMP report which resulted from the Force’s investigation of the incident. That report was obtained during the hearing.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-10", + "id": "fc-57473-198", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 477–479", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "[…] Decision of the Minister 131. (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide (a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened; (b) in the case of a conveyance seized or in respect of which a notice was served under section 124 on the ground that it was made use of in respect of goods in respect of which this Act or the regulations were contravened, whether the conveyance was made use of in that way and whether the Act or the regulations were so contravened; or (c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply. (d) [Repealed, 2001, c. 25, s. 72] Exception (1.1) A person on whom a notice is served under section 130 may notify the Minister, in writing, that the person will not be furnishing evidence under that section and authorize the Minister to make a decision without delay in the matter. Notice of decision (2) The Minister shall, forthwith on making a decision under subsection (1), serve on the person who requested the decision a detailed written notice of the decision.", - "current_to": "2009-07-15", + "text": "Almrei and the other men were observed washing planes and restocking supplies for a company that had a contract to service aircraft. Almrei was seen using a magnetic security pass to gain access to the hangar. It was later determined that he did not have a pass issued by the airport authority but Ishak did. Ishak’s pass was subsequently suspended by Transport Canada. The RCMP investigation concluded that the men were merely engaged in cleaning and restocking the aircraft.\n\nBut apart from the evidence that he had acquired such documents for his own use and procured them for Almarabh, the information presented to the Court did not support a finding that he was a member of a false document network. Security Consciousness and Use of Clandestine Methodology:\n\nThe public summary says nothing more than that Almrei has demonstrated concern for his security and an understanding of security procedures. It states that he was aware that his activities might be of interest to the authorities. This refers to information which was considered in the closed proceedings. I have addressed these matters in my private reasons for judgment. Should the Certificate be Stayed as an Abuse of the Court’s Process?", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-11", + "id": "fc-57473-199", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 480–481", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Judicial review (3) The Minister’s decision under subsection (1) is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by subsection 135(1). Décision du ministre 131. (1) Après l’expiration des trente jours visés au paragraphe 130(2), le ministre étudie, dans les meilleurs délais possible en l’espèce, les circonstances de l’affaire et décide si c’est valablement qu’a été retenu, selon le cas : a) le motif d’infraction à la présente loi ou à ses règlements pour justifier soit la saisie des marchandises ou des moyens de transport en cause, soit la signification à leur sujet de l’avis prévu à l’article 124; b) le motif d’utilisation des moyens de transport en cause dans le transport de marchandises ayant donné lieu à une infraction aux mêmes loi ou règlements, ou le motif de cette infraction, pour justifier soit la saisie de ces moyens de transport, soit la signification à leur sujet de l’avis prévu à l’article 124; c) le motif de non-conformité aux paragraphes 109.1(1) ou (2) ou à une disposition désignée en vertu du paragraphe 109.1(3) pour justifier l’établissement d’une pénalité en vertu de l’article 109.3, peu importe s’il y a réellement eu non-conformité. d) [Abrogé, 2001, ch. 25, art. 72] Exception (1.1) La personne à qui a été signifié un avis visé à l’article 130 peut aviser par écrit le ministre qu’elle ne produira pas de moyens de preuve en application de cet article et autoriser le ministre à rendre sans délai une décision sur la question. Avis de la décision (2) Dès qu’il a rendu sa décision, le ministre en signifie par écrit un avis détaillé à la personne qui en a fait la demande.", - "current_to": "2009-07-15", + "text": "In closing argument, the respondent submitted that the certificate should be stayed as an abuse of process because: a. he had been denied an opportunity to know and meet the case against him and this deficiency had not been cured by the presence of the Special Advocates; b. the Ministers had destroyed evidence which was required by the Special Advocates to determine the reliability of information and because the Ministers rely on unreliable evidence; c. the Government of Canada chose to use the security certificate procedure with all of its limitations on the rights of the respondent in lieu of an appropriate alternate procedure, namely criminal charges related to his admitted role in procuring a false Canadian passport; and because d. the Ministers breached their duty of candour to the Court.\n\nThe Special Advocates filed a related motion in the closed proceedings seeking to have the Certificate quashed on the ground that the Ministers and the Service breached their duties of candour. Their submissions were, in brief, that the SIR and Public Summary were prepared, and evidence and other information was presented to the Court during the evidentiary portion of this proceeding in a manner that failed to disclose material exculpatory evidence and other information that was in the possession of the Service and was only disclosed through the Charkaoui II disclosure. I have addressed that motion in my private decision and my findings in respect to the specific examples of material non-disclosure alleged have also been taken into consideration in arriving at a decision on the merits of the certificate.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-12", + "id": "fc-57473-200", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 482–483", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Recours judiciaire (3) La décision rendue par le ministre en vertu du paragraphe (1) n’est susceptible d’appel, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues au paragraphe 135(1). Where there is contravention 133. (1) Where the Minister decides, under paragraph 131(1)(a) or (b), that there has been a contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, and, in the case of a conveyance referred to in paragraph 131(1)(b), that it was used in the manner described in that paragraph, the Minister may, subject to such terms and conditions as the Minister may determine, (a) return the goods or conveyance on receipt of an amount of money of a value equal to an amount determined under subsection (2) or (3), as the case may be; (b) remit any portion of any money or security taken; and (c) where the Minister considers that insufficient money or security was taken or where no money or security was received, demand such amount of money as he considers sufficient, not exceeding an amount determined under subsection (4) or (5), as the case may be.", - "current_to": "2009-07-15", + "text": "In considering whether proceedings constitute an abuse of the court's process, the test is that set out in Blencoe v. B.C. Human Rights Commission, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, at paragraph 121. The court must be satisfied that the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted. The proceedings must be unfair to the point that they are contrary to the interests of justice or will undermine the integrity of the judicial process: Canada v. Tobias, [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82. Such cases will be extremely rare.\n\nThe respondent submits that the test is satisfied by the cumulative effect of the identified concerns even if one or more would be insufficient. Lack of Disclosure/Inability to Meet the Case", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-13", + "id": "fc-57473-201", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 484–485", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "[…] Return of goods under paragraph (1)(a) (2) Goods may be returned under paragraph (1)(a) on receipt of an amount of money of a value equal to (a) the aggregate of the value for duty of the goods and the amount of duties levied thereon, if any, calculated at the rates applicable thereto (i) at the time of seizure, if the goods have not been accounted for under subsection 32(1), (2) or (5) or if duties or additional duties have become due on the goods under paragraph 32.2(2)(b) in circumstances to which subsection 32.2(6) applies, or (ii) at the time the goods were accounted for under subsection 32(1), (2) or (5), in any other case; or (b) such lesser amount as the Minister may direct. […] Cas d’infraction 133. (1) Le ministre, s’il décide, en vertu des alinéas 131(1)a) ou b), que les motifs d’infraction et, dans le cas des moyens de transport visés à l’alinéa 131(1)b), que les motifs d’utilisation ont été valablement retenus, peut, aux conditions qu’il fixe : a) restituer les marchandises ou les moyens de transport sur réception du montant déterminé conformément au paragraphe (2) ou (3), selon le cas; b) restituer toute fraction des montants ou garanties reçus; c) réclamer, si nul montant n’a été versé ou nulle garantie donnée, ou s’il estime ces montant ou garantie insuffisants, le montant qu’il juge suffisant, à concurrence de celui déterminé conformément au paragraphe (4) ou (5), selon le cas.", - "current_to": "2009-07-15", + "text": "The first of the abuse of process grounds raised by the respondent is associated with his broad Charter based challenge to the legislative scheme. As I indicated above, I do not consider it necessary to address that challenge in this case in view of the conclusions I have reached on the evidence. I think it important to comment, however, on the respondent’s argument that he was denied procedural fairness because of the lack of full disclosure. It is my view that the essential elements of the government's allegations against Mr. Almrei were disclosed to him in these and the prior proceedings. Based on his testimony and the submissions made on his behalf, Mr. Almrei was clearly aware of the Ministers’ allegations against him. He was not given full disclosure of all of the closed information that supported the Ministers’ case, such as human source reports, but that was unavoidable in the circumstances.\n\nIn support of this argument, the respondent relies on recent decisions of the European Court of Human Rights and the courts of the United Kingdom: Secretary of State v. M.B., [2007] UKHL 46 [“SSHD v. MB”]; A. and Others v. the United Kingdom, Application 3455-05, and ECHR Feb.19, 2009; Secretary of State for the Home Department v. AF and others, [2009] UKHL 28 [“SSHD v. AF”].", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-14", + "id": "fc-57473-202", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 486", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "[…] Restitution des marchandises (2) La restitution visée à l’alinéa (1)a) peut, s’il s’agit de marchandises, s’effectuer sur réception : a) soit du total de leur valeur en douane et des droits éventuellement perçus sur elles, calculés au taux applicable : (i) au moment de la saisie, si elles n’ont pas fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), ou si elles sont passibles des droits ou droits supplémentaires prévus à l’alinéa 32.2(2)b) dans le cas visé au paragraphe 32.2(6), (ii) au moment où elles ont fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), dans les autres cas; b) soit du montant inférieur que le ministre ordonne. […] Federal Court 135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. Ordinary action (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. Cour fédérale 135. (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur.", - "current_to": "2009-07-15", + "text": "In SSHD v. M.B., above, at paragraph 35, Lord Bingham commented on the \"grave disadvantages\" of the person affected not been aware of the case against him. He noted that the reason is obvious: In any ordinary case, the client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknesses and vulnerability of the adverse witnesses, and indicates what evidence is available by way of rebuttal. This is a process which may be impossible to adopt if the control person does not know the allegations made against him and cannot therefore give meaningful instructions, and the special advocate, once he knows what the allegations are, cannot tell the controlled person or seek instructions without permission, which in practice (as I understand) is not given.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-15", + "id": "fc-57473-203", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 17–19", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 487–488", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Action ordinaire (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions. VI. ISSUES\n\nTwo questions are raised: 1. Is the Applicant able to challenge in judicial review the Minister’s determination made pursuant s. 131 of the Act that the Applicant contravened s. 12 of the Act? 2. Was the Minister’s decision pursuant s. 133 of the Act requiring the Applicant to remit a certain monetary amount for the release of the seized ring unlawful? VII. ANALYSIS a. Is the Applicant able to challenge in judicial review the Minister’s determination made pursuant s. 131 of the Act that the Applicant contravened s. 12 of the Act?\n\nThe Applicant is challenging the Minister’s finding of a contravention of the Act made pursuant s. 131 of the Act of this application for judicial review. Subsection 131(3) of the Act is a privative clause within the Customs Act that requires decisions made pursuant to s. 131 of the Act be subject to review only as described in s. 135(1) of the Act. Subsection 135(1) of the Act requires that a Minister’s decision made under s. 131 of the Act be appealed by way of an action.", - "current_to": "2009-07-15", + "text": "As counsel for the respondent fairly acknowledged, the practice in Canada in security certificate cases is not the same as that which applies in control order proceedings in the United Kingdom. In certain of the UK cases, details of the allegations against the affected individual have been wholly or largely withheld because of national security concerns. The public allegations may be so general as to preclude a cogent defence: SSHD v. AF, above at paragraph 63 to 65. The individual is not provided with an extensive summary of the closed case, as is the practise here, and the Court lacks the discretion to direct the disclosure of additional information in order to ensure that the subject of the process is reasonably informed of the Minister’s case, subject to withdrawal of the information by the Minister. Thus the issue in the UK cases, which has now been resolved, has been whether there is a “irreducible core minimum of information” that must be provided to ensure a fair hearing. The amount of information provided in the Canadian certificate cases is far above that level.\n\nIn this case, most of the information relied upon by the Ministers that was not disclosed to the respondent consisted of reports from human sources. To disclose the information would have lead to the identification of the sources. In SSHD v. AF at paragraphs 65 and 66, the House of Lords, applying the decision of the Grand Chamber of the European Court of Human Rights in A. v. the United Kingdom, above, accepted the principle that it may be acceptable not to disclose the source of evidence so long as counterbalancing procedures ensured that the party was accorded “a substantial measure of procedural justice.”", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-16", + "id": "fc-57473-204", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 20", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 489–490", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "No such statutory right of appeal exists with respect to Ministerial decisions taken under s. 133 of the Act. Section 133 of the Act provides that where the Minister finds under s. 131 of the Act that a contravention of the Act has occurred, the Minister may impose a penalty or other applicable remedial action such as the return of goods on receipt of an amount of money. Accordingly, a determination made pursuant s. 133 of the Act may often be dependent on a finding of a contravention of the Act. Nevertheless, the two decisions are separate and distinct, and must be challenged separately. The determination made pursuant to s. 131 of the Act in respect of a contravention of s. 12 of the Act may only be appealed by way of an action to this Court. Meanwhile, a determination made pursuant s. 133 of the Act regarding the release of the goods may be challenged only by way of an application for judicial review in accordance with s. 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7.", - "current_to": "2009-07-15", + "text": "This is essentially the same conclusion as that reached by the Supreme Court of Canada in Charkaoui 1 in 2007. The individual must be provided with full disclosure or a “substantial substitute” to full disclosure. In my view, Parliament’s effort to craft a suitable alternative was successful in this case for two reasons. The first is that the respondent was provided with a sufficient understanding of the allegations that were made against him in the SIR through the public summary and the further information that was ordered disclosed. The second is that the Special Advocates very effectively performed the roles for which they were given a statutory mandate: to protect the interests of the respondent in the closed proceedings; to question the withholding of information; and to challenge the relevance, reliability and appropriateness of the non-disclosed information and other evidence relied upon by the Ministers. Destruction of Evidence\n\nThis concern is founded upon the fact that during the time of the investigation of the respondent, CSIS's policy was to destroy primary source material. This is the issue that was addressed by the Supreme Court of Canada in Charkaoui II. The Supreme Court did not rule on the respondent’s abuse of process application in that case, holding that it was for the court of first instance to review the evidentiary record and make the determination.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-17", + "id": "fc-57473-205", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 21", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 491–493", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "As Justice Carolyn Layden-Stevenson recognized in a case interpreting similarly structured legislation, “the result is one that is both awkward and inconvenient” (Dokaj, above, at para. 39). Indeed, Justice Andrew Mackay of this Court, in ACL Canada Inc., above, recommended that the bifurcated legislative scheme be amended by Parliament: [56] I note in passing that if my interpretation of the Act is correct, there is an anomalous situation presented for anyone seeking to question the Minister's decisions in relation to seizures and forfeitures. The Act provides for an appeal of a decision of the Minister on the issue of whether there has been a contravention of the Act or regulations and such an appeal may be made by way of an action in this Court within 90 days of notice of the decision. The exercise of discretion in imposing the penalty, like any other administrative discretion, even where there is a privative clause, is subject to judicial review in this Court, but since amendments to the Federal Court Act effective February 1, 1992, relief must be sought by an application for judicial review, not by an action, to be commenced within 30 days of the decision sought to be reviewed, unless the Court grants an extension of time to apply. The person affected by customs seizures and penalties can only be confused by the two remedial processes Parliament has now provided under the two statutes. Parliament might well consider whether both decisions of the Minister, under ss. 131 and 133, should be subject to review in a single proceeding, by way of an appeal or on application for judicial review.", - "current_to": "2009-07-15", + "text": "The respondent's argument on this question is framed primarily in the context of the destruction of electronic surveillance information. As discussed above, this is not a case which turned on the significance of electronic intercepts. Accordingly, the failure to keep original recordings of all of the intercepts conducted did not, in my view, have a material effect on the outcome of the case. In any event, I found that a summary of the intercept reports would be sufficient to provide reasonable disclosure to the respondent.\n\nThe destruction of original interview notes by source handlers was also not an issue of major concern in this case because of the contemporaneous reports which they had prepared. I did not consider it necessary to call any of the handlers as witnessed to be examined and cross-examined on the accuracy of those reports. In the circumstances and given the volume of material that the Court and Special Advocates had to review, I doubt that it would have proven effective to proceed in that manner. That is not to say that it could not be important in a certificate case if a significant issue arose as to whether a statement attributed to a source was reported accurately. Choice of Procedure\n\nThe respondent submits that had he been charged under the Criminal Code with offences related to the passport he procured for Nabil Almarabh, he would have been entitled to all of the procedural due process rights available in the criminal justice system. The decision to proceed under the security certificate procedure with its inherent limitations has deprived him of the full enjoyment of those rights.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-18", + "id": "fc-57473-206", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 22", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 494–496", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The interpretation of the Act, requiring that s. 131 determinations be appealed by an action has repeatedly been supported by this Court as proceedings by way of judicial review have not been able to address the evidence in such cases due to the technical language in the legislation with its privative clause (See Dokaj, above at para. 42; ACL Canada Inc., above, at paras. 52-56; Time Data Recorder International Ltd. v. Canada (Minister of National Revenue - M.N.R.), (1993) 66 F.T.R. 253, 42 A.C.W.S. (3d) 66 (F.C.T.D.) at para. 22 aff’d. (1997) 211 N.R. 229, 70 A.C.W.S. (3d) 819 (F.C.A.) at para. 21; He v. Canada (2000), 182 F.T.R. 85, 95 A.C.W.S. (3d) 82 (F.C.T.D.) at para. 11.) 2. Was the Minister’s decision pursuant s. 133 of the Act requiring the Applicant to remit a certain monetary amount for the release of the seized ring unlawful?", - "current_to": "2009-07-15", + "text": "The Court may have encouraged this argument by questions posed to the government witnesses during the detention review proceedings. At first impression, it had occurred to me that Almrei could have been charged under the Code and, if convicted, steps could have been taken to reopen the refugee determination and remove him from Canada. I asked the Service and CBSA witnesses why that was not done and they were unable to answer.\n\nThe security certificate procedure, although intended by Parliament to be more expedient, results in a label being attached to the named person which may complicate removal procedures. In Almrei’s case, the immigration authorities contributed to that label by informing the Syrian Embassy in Ottawa that he was a terrorist suspect when they requested a travel document for him after the first Certificate was upheld. That had the effect of alerting the Syrians to Mr. Almrei’s alleged pedigree and association with Al Qaeda. Syria is one of the Middle Eastern countries that Al Qaeda theorists, such as the Syrian Abu Musab Al Suri, consider corrupt and apostate.\n\nWhat the government knew and could prove in the fall of 2001 are, of course, two different things. The information about Almarabh and the passport was intelligence that could not have been introduced as evidence in a criminal proceeding without compromising the sources. Almarabh was a material witness in the hands of the FBI and unlikely to be made available to testify.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-19", + "id": "fc-57473-207", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 23–24", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 497–499", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "On judicial review, this court agrees with the position of the Respondent, as the court has no choice due to the legislation as specified. Ms. Nguyen has not shown that the determination by the Minister made pursuant s. 133 was unlawful. All of Ms. Nguyen’s evidence and argument was directed solely towards showing that she had not contravened s. 12 of the Act. As stated above, that inquiry cannot be made by this Court in an application for judicial review; it would have to be taken by means of an action within the current legislation; and, thus, the context for the court decision would be different. Ms. Nguyen has not provided any other evidence or argument in response to the Minister’s determination made pursuant to s. 133 of the Act regarding the release of the seized ring that could alter the decision bearing in mind its present context. Nevertheless, the court, in conclusion, fully acknowledges that although the factual evidence is overwhelmingly in Ms. Nguyen’s favour, the legislative provisions with the privative clause are so restrictive that the factual evidence, although fully considered, cannot make a difference under the legislative context in Ms. Nguyen’s case. VIII. CONCLUSION\n\nIn order to attempt to overturn the Minister’s determination pursuant to s. 131 of the Act that there has been a contravention of s. 12 of the Act, the Applicant would have to make an appeal by way of an action. The Applicant, by way of judicial review, has not been able to show that the Minister’s determination made pursuant s. 133 of the Act was unlawful.", - "current_to": "2009-07-15", + "text": "In any event, the choice of procedure against a suspect, whether criminal or administrative, is entirely a matter for the Executive. There is no right to be charged with a criminal offence when Parliament has provided an alternative procedure to achieve the objective of protecting national security and the safety of Canadians. It is not an abuse of the Court’s process to make use of that procedure. Breach of the Duty of Candour\n\nThe Supreme Court has emphasized that a party before the Court on an ex parte basis is under a duty of utmost good faith: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, [2002] S.C.J. No. 73, at para. 27. This is particularly true in the area of national security law characterized by in camera hearings and ex parte representations made by the government. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Ruby, above, at para. 47.\n\nThe application of this duty in security certificate proceedings prior to Bill C-3 was recognized by the Federal Court of Appeal in Charkaoui v. Minister of Citizenship and Immigration et al., 2006 FCA 206, [2006] F.C.J. No. 868, at para. 18. In my view, the enactment of Bill C-3 has not altered the duty owed to the Court by the Service and the Ministers. Proceedings continued to be conducted in closed sessions and they remain ex parte in the sense that the respondent and his counsel are not present. The presence of the Special Advocates and their ability to receive the same information that is now disclosed to the Court, pursuant to Charkaoui II, does not alter that fact.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-20", + "id": "fc-57473-208", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 25–27", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 500–501", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Recognizing the related, but separate, nature of the s. 131 and s. 133 determinations, it is open to this Court to suspend a judicial review of a determination made pursuant s. 133 of the Act until an appeal of a determination made pursuant s. 131 of the Act. Justice Sean Harrington stated in Samson v. Canada (Attorney General), 2008 FC 557 that when an application for judicial review of a determination made pursuant s. 133 of the Act is made before an appeal of a determination of a contravention of the Act has taken place, the judicial review ought to be suspended: [5] This implies, therefore, that it is best to file an application for judicial review of a penalty even before a hearing is held deciding the grounds of the offence. Clearly, if it were determined that no offence was ever committed, the penalty would fall and the judicial review would become moot. In any event, the judicial review ought to be suspended pending a decision on the matter before the Court.\n\nIn this case, however, given that Ms. Nguyen has not initiated any appeal of the Minister’s determination made pursuant s. 133 of the Act, this court cannot exercise a discretion it does not have. The court cannot suspend an application for judicial review when no action has been initiated. The fact that no action was initiated due to the financial considerations of the Applicant, as was clearly specified by Ms. Nguyen’s counsel during his oral representations, cannot change the nature of the limitation of the court’s discretion.\n\nTherefore, the court has no choice but to interpret the legislation rather than to formulate it. As a result, the application for judicial review must be dismissed. IX. OBITER", - "current_to": "2009-07-15", + "text": "The duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case. That was not done in this instance. The 2008 SIR was assembled with information that could only be construed as unfavourable to Almrei without any serious attempt to include information to the contrary, or to update their assessment. As Mr. Young observed, in an unguarded moment, they thought that they had done their job in 2001 and there was no need to continue the investigation.\n\nThe Ministers submit that the failure to consider information that casts the Service’s opinion in a different light should not undermine the legitimacy or fairness of the proceeding as long as that information has been made available in the course of the reasonableness hearing. Indeed, the Ministers assert in their closing reply submissions, at paragraph 15, that there is no requirement that the SIR advance a case against a finding of inadmissibility. The SIR, in other words, is merely a document crafted by CSIS to plead their case and does not need to present the contradictory information within their possession. In my view, that is clearly incompatible with the duties of good faith and candour which the Court expects from the Service and the Ministers.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-21", + "id": "fc-57473-209", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 28–31", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 502–503", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Due to the deference owed by this court under constitutional supremacy, as discussed in the introduction, it is outside of the procedural and technical legal framework of the decision which recognizes the restrictive language of the legislation, that a reckoning of the big picture can only be examined more fully in obiter subsequent to the decision itself.\n\nExceptional circumstances require an exceptional measure of care to ensure that no case falls through the cracks.\n\nIt is recognized due to the prescription period specified in the Customs Act, and, also, due to the high cost of actions before the court, an action is often not an option for applicants.\n\nA suggestion for the executive and legislative branches (as part of an indirect dialogue that exists between the three branches of government through jurisprudence) may be to consider that citizens or residents of Canada who are about to leave Canada, prior to departure, be more easily made aware that they are to make known for the purpose of customs officials any object of worth, leaving Canada on their person or in their luggage that they intend to bring back to Canada which may initiate questions in regard to customs duties on their return.", - "current_to": "2009-07-15", + "text": "In this case, information that was inconsistent with that presented to the Court through the SIR only came to light when it was ordered produced in conformity with the Service’s Charkaoui II obligations. This included surveillance and intercept reports that contradicted human source reports on which the Service and the Ministers relied. Information that was inconsistent with the content of the Source Exhibit was only disclosed when the Court began to order the production of information from the human source management files. The Charkaoui II disclosure obligation does not absolve the Service from the responsibility to fairly consider and present the information in their possession when they prepare the SIR. Nor does it absolve the Ministers from the responsibility to ensure that the information and evidence filed in support of the certificate is complete, thorough and fairly presented.\n\nI find, therefore, that the Service and the Ministers were in breach of their duty of candour to the Court. As for a remedy, a determination of the reasonableness of the certificate based on the Court's assessment of all of the information and evidence presented in this case is the most appropriate course of action at this stage of the proceedings. CONCLUSION", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-22", + "id": "fc-57473-210", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 32", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 504–505", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "The case at bar may assist as an example on the basis of the evidence: customs officials appeared to have based themselves on the belief that Ms. Nguyen had obtained the ring in question in Hong Kong, whereas she consistently indicated that she had been given the ring in Vancouver. In its seizure synopsis, customs officials determined that the origin or country of purchase of the ring was in Hong Kong (Certified Record at p. 151). Moreover, in its reasons for decision, the Minister’s Delegate refers several times to how Ms. Nguyen had claimed to receive the ring as a gift from a her boyfriend in Hong Kong (Certified Record at pp. 21, 26). This loose language leaves as ambiguous whether the Minister’s Delegate believed that the ring had been given to Ms. Nguyen in Hong Kong, even though the evidence only points to the boyfriend as being a businessman from Hong Kong. As stated above, Ms. Nguyen consistently indicated that she had been given the ring in Vancouver. In the customs officer’s own narrative report, the customs officer reports that Ms. Nguyen indicated to her that the ring was given to her in Vancouver (Certified Record at pp. 157). The Minister’s Delegate never makes a clear determination as to where the ring was received.", - "current_to": "2009-07-15", + "text": "Having considered all of the information and other evidence presented to the Court, I am satisfied that Hassan Almrei has not engaged in terrorism and is not and was not a member of an organization that there are reasonable grounds to believe has, does or will engage in terrorism. I find that there are no reasonable grounds to believe that Hassan Almrei is to-day, a danger to the security of Canada. Thus, I find that none of the grounds of inadmissibility in subsection 34(1) of the Act have been made out and, accordingly, I find that the certificate is not reasonable and must be quashed.\n\nIn arriving at this conclusion, I am taking into consideration that Hassan Almrei lied and engaged in criminal activities prior to and following his entry to Canada. He maintained contacts with other Afghan Arab veterans, associated with persons who were believed to be Islamic extremists and made contact with others who were involved in human smuggling and the false document trade. He was prepared to assist others in obtaining those services and himself procured a false passport and other travel documents. As I said at the outset of these reasons, I would have had no difficulty upholding the certificate in 2001 on the grounds that he constituted a danger to the security of Canada and that there were reasonable grounds to believe then that he was a member of a terrorist organization, on the information available to the Court at that time. Almrei did not lead evidence to contest those findings and the information presented in camera was not challenged as it has been in these proceedings.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-23", + "id": "fc-57473-211", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 33–34", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 506–509", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "It appears that Ms. Nguyen did everything she reasonably could have done given her particular factual circumstances. While the decision stated that the appraisal and invoice of the ring “does not constitute evidence that the ring was legally imported into Canada or that applicable duties and taxes were accounted for” (Certified Record at p. 14); the evidence demonstrates that Ms. Nguyen provided as much documentation of the ring as she reasonably could have possibly done. As stated in the facts, Ms. Nguyen provided at the border an appraisal, an invoice, and a diamond grading report for the ring. The appraisal for the diamond in the ring was conducted by a gemological consultant in Vancouver on March 31, 2005. This appraisal suggested an insurance coverage of the diamond before its affixation to a gold ring at $124,800. The invoice was with respect to the cost of setting the diamond in a gold band. This invoice was issued by a jeweller located in Vancouver and was dated April 15, 2005.\n\nThe diamond grading report was with respect to the diamond and was dated September 15, 2003 in Antwerp, Belgium. Diamonds are usually imported from abroad by Canadian jewelers. As is clearly stated in the July 8, 2007 GLS Gemlab Limited letter, “Any Canadian jeweller can import loose diamonds and import mountings from Hong Kong or India, set the diamonds and sell these items in Canada” (Certified Record at p. 79). Thus, most diamonds purchased by consumers in Canada will have already been imported by Canadian jewelers. Private individual buyers of diamond rings would not have any evidence as to whether the diamonds were legally imported or that applicable duties and taxes were accounted for as that would have been done by those in the business thereof.", - "current_to": "2009-07-15", + "text": "The Hassan Almrei of 2001 is not the same person that I heard and observed in the courtroom. As he acknowledged in his testimony, he has been changed by the experience, by the people who have befriended and supported him in the years in which he was in custody and through the reading he has done on a broad range of subjects. One constant in his life over the course of the past eight years has been his religious devotion. I do not believe that he will now proceed to violate the principles of his faith.\n\nI am also persuaded by the evidence that if he is the person that the Ministers believe him to be, it is unlikely that after such a prolonged period of detention that he could re-enter the life that he had and reactivate his contacts in the false document trade. Given the notoriety that he has acquired, that would be foolhardy for him and for anyone inclined to do business with him.\n\nI note that CSIS, in their most recent assessment of Mr. Almrei, considers that the risk that he poses a threat to the security of Canada, if released without conditions, was reduced as a result of a number of factors. They had no new information to indicate that he was engaged in threat-related activities, his original network of contacts has been disrupted and his high public profile and lack of anonymity would render him less effective.\n\nThe Service's assessment in the February 2008 SIR was prepared, in my view, without sufficient consideration of all of the information within its possession and without considering whether the state of knowledge about the risks to national security posed by Islamist extremists had evolved since Almrei was detained in 2001. That task fell on the Court with the assistance of counsel for both parties and the Special Advocates. Certified Questions", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-24", + "id": "fc-57473-212", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 35", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "paras 510–512", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Moreover, as stated by the Applicant at paragraphs 24-25 of its Memorandum of fact and law, it is not unusual for people who have owned jewelry for a long time, such as Ms. Nguyen, to no longer possess the cash receipts with respect to all her jewelry. Here, the CBSA’s own jewelry appraisers give evidence that it is reasonable for the ring to have been in Canada for several years. In an appraisal dated March 7, 2007 made at the request of the government itself, the CBSA, GLS Gemlab Limited stated that the ring “has been worn for some time…” (Certified Record at p. 117). In a follow-up letter, GLS Gemlab Limited, mandated by the government itself as demonstrated above, stated that the original owner of the diamond in the ring would have most likely have been given a certificate describing the characteristics of the diamond. Nevertheless, GLS Gemlab Limited stated that “I meet many people who own laser engraved diamonds and they do not have the matching paper work” (Certified Record at p. 79).", - "current_to": "2009-07-15", + "text": "In accordance with section 79 of IRPA, no appeal may be made to the Federal Court of Appeal from this decision unless this Court certifies that a serious question of general importance is involved in the determination which has been made in the case and states the question for the purposes of appeal.\n\nThe Ministers have proposed a number of questions for consideration. The respondent is opposed to the certification of any question on the ground that should he have succeeded on the factual merits of the case against him, it would be unfair to subject him to a possibly long drawn-out appellate process after he has spent over seven years in custody.\n\nIn light of the findings that I have made and the length of these reasons, I think it appropriate to allow the parties some time to consider whether they wish to re-submit or withdraw their proposed questions or submit new questions. Accordingly, a formal order will not issue immediately and I will make myself available to discuss the matter in conference with counsel at a convenient date and time.", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { - "id": "fc-56900-25", + "id": "fc-57473-213", "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2009 FC 1263", + "act_short": "Almrei", + "act_name": "Almrei (Re)", "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 36", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "citation": "Almrei (Re), 2009 FC 1263", + "marginal_note": "para 513", + "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", "part": "Federal Court", "division": "", - "text": "Finally, it does not appear reasonable for the recipient of a gift to ask the person who has given the gift for a sales receipt. Ms. Nguyen has also consistently stated that the ring was given to her in Vancouver by her boyfriend. While there may have been some confusion as to whether her boyfriend owned businesses in Hong Kong or in Vancouver, information relayed by Ms. Nguyen through a translator to a customs officer who initially asked several questions at once, these answers, in and of themselves, do not appear to constitute core evidence that would help lead to a determination of the origin of the ring. Ms. Nguyen’s documentary evidence appears to substantiate her response to the customs officers, yet, nevertheless, that has not changed her situation. JUDGMENT THIS COURT ORDERS that the application for judicial review is dismissed. “Michel M.J. Shore” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1390-08 STYLE OF CAUSE: THI NGOC NGUYEN and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: July 7, 2009 REASONS FOR JUDGMENT AND JUDGMENT: Shore J. DATED: July 15, 2009 APPEARANCES: Mr. Moses Kajoba FOR THE APPLICANT Ms. Suzanne Pereira FOR THE RESPONDENT SOLICITORS OF RECORD: KAJOBA & COMPANY Barristers & Solicitors Vancouver, British Columbia FOR THE APPLICANT MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia FOR THE RESPONDENT", - "current_to": "2009-07-15", + "text": "I wish to express my appreciation to all of the counsel who took part in these proceedings, including those who moved on to other matters along the way, for their diligence, thoughtfulness, courtesy and good humour which made my task much easier. “Richard G. Mosley” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: DES-3-08 STYLE OF CAUSE: IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration and Refugee Protection Act (IRPA); AND IN THE MATTER OF the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA; AND IN THE MATTER OF HASSAN ALMREI PLACE OF HEARING: Ottawa and Toronto, Ontario DATES OF PUBLIC April 27, 28, 29 and 30, 2009 HEARINGS: May 5, 6, 7, 8, 11, 12, 13, 14, 19, 20, 21, 22, 25, 26 and 27, 2009 July 2, 3 and 6, 2009 DATES OF IN CAMERA March 18, 2009 HEARINGS: April 1, 2, 14, 15, 16, 17, 2009 June 10, 22, 23, 24, 25 and 26, 2009 July 27 and 28, 2009 September 18, 25 and 30, 2009 REASONS FOR JUDGMENT: MOSLEY J. DATED: December 14, 2009 APPEARANCES: Ms. Marianne Zoric Mr. Marcel Larouche Mr. Bernard Assan Mr. Gordon Lee Mr. Asha Gafar Ms. Jennifer Dagsvik Ms. Tessa Kroeker Mr. Lorne Waldman Mr. Paul Williams Ms. Sarah Boyd Mr. Paul Copeland Mr. Gordon Cameron for the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness for Hassan Almrei for Special Advocates SOLICITORS OF RECORD: John H. Sims, Q.C. Deputy Attorney General of Canada for the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness Waldman and Associates Toronto, Ontario Mr. Paul Copeland Toronto, Ontario Mr. Gordon Cameron Ottawa, Ontario for Hassan Almrei for Special Advocates", + "current_to": "2009-12-14", "last_amended": "", "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" }, { "id": "fca-36092-1",